Saturday, April 05, 2003

Commerce and kiddie porn

On March 20, the oft-maligned U.S. Court of Appeals for the Ninth Circuit got one right. The case involved everyone’s favorite topic, child pornography. Actually, the facts of United States v. McCoy describe something somewhat less sinister than an Internet kiddie porn ring:

The facts underlying the charge to which McCoy pleaded guilty arise from a single photograph taken in April 2000. The government does not allege that Rhonda McCoy, or her husband Jonathan McCoy, were or are commercial producers of child pornography. At the time charges were filed against the McCoys, the couple had two children: Kala, a ten-year-old daughter, and a twenty-month-old son. The family lived in housing provided by the Navy in San Diego, where Jonathan McCoy served as a Naval Petty Officer. Sometime in April 2000, Rhonda, Jonathan, and Kala were spending an evening at home, painting Easter eggs and taking family photographs. Rhonda, who, according to the presentence report, has a substance abuse problem as well as mental health problems, had substantial amounts of alcohol thatnight. At some point during the evening, Rhonda and Kala, partially unclothed, posed side by side for the camera, with their genital areas exposed. This pose was captured in one photograph.

Approximately two months later, Rhonda left five rolls of film with the Navy Fleet Exchange for processing. Shortly thereafter, Rodd Wilson, a loss prevention manager for the Exchange, contacted the U.S. Naval Criminal Investigation Service and informed it of the existence of photographs that appeared to present a child in sexually suggestive poses. Agents of the U.S. Naval Criminal Investigation Service, in conjunction with the FBI and the San Diego Police Department, responded by conducting a search of the McCoy home pursuant to a federal search warrant, and seizing numerous photographs, as well as the family still camera, video camera, and computer.

In January 2001, the government filed an indictment charging both Jonathan and Rhonda with four counts of manufacturing child pornography by a parent using materials transported in interstate commerce, 18 U.S.C. § 2251(b). Rhonda was also charged with one count of manufacturing child pornography using materials transported in interstate commerce, 18 U.S.C. § 2251(a).


The statutes in question make it a federal crime to produce pornography using “materials”—in this case, cameras and film—that at one point traveled across state lines. In this case, the government argued that both the camera and film McCoy used to take the picture were manufactured outside their home state of California. Thus, a federal child pornography case was born, resting on a highly dubious assertion of “interstate commerce” jurisdiction.

The Ninth Circuit didn’t buy it. By a 2-1 vote, the appellate court found that the statute used in this case was “unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.” The Court’s opinion was authored by Stephen Reinhardt, a liberal circuit judge often considered the Ninth Circuit’s leading radical. In this case, however, Judge Reinhardt was right on the mark.

Constitutional challenges to interstate commerce laws generally turn on the meaning of “interstate,” and this case was no exception. But Judge Reinhardt’s opinion also correctly addressed the meaning of “commerce” itself. In this case, McCoy never intended her photograph to become an article of commerce; that is, she had no plans to sell or provide the photograph to persons outside her family. Common sense tells us that, whatever else her act constituted, it was not one of ordinary commerce. Yet the government argued that this was commerce because even if this photo was never used in commerce, it could theoretically stimulate demand for commercial child pornography.

Put another way, the government argues the existence of any child pornography is subject to interstate commerce regulation, because all such pornography contributes to the overall volume of said materials. This argument is not just speculative, but patently irrational. Applying this reasoning, Congress could ban, say, homosexual sodomy on the grounds that the existence of such sodomy might contribute to an increase in various crimes such as statutory rape or interstate kidnapping. It’s a slippery slope of tyrannical proportions—the total divorcing of factual reasoning from state action.

Given the broad scope of this law, it’s easily subject to abuse, as it apparently was in the McCoy case. To take a more cut-and-dry example, however, consider the potential plight of nudist families. Would a photograph of a nudist family including children be subject to prosecution under this statute? Yes, it would, since intent or context seems irrelevant to the government. This is far removed from what the Constitution anticipated in granting Congress the power to regulate interstate commerce.

The intent of the Constitution’s interstate commerce clause was to give Congress the power to ensure the development of a truly national economic market. The Framers were concerned about, for example, New Jersey slapping a tariff on goods manufactured in New York; the Framers were not all that concerned with what people in New Jersey did once they received their New York-made goods. In this sense, the child pornography law in question here is facially unconstitutional. Congress was not attempting to protect the process of interstate commerce, but rather to regulate private activity under the false pretext that interstate commerce might be somehow affected.

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