Child Pornography: Comparison of Selected Provisions of S. 151 and H.R. 1161 with Brief Comments on their Constitutionality
CRS Report for Congress
Child Pornography: Comparison of Selected
Provisions of the Senate-passed and House-
th
passed Versions of S. 151, 108 Congress,
with Brief Comments on their
Constitutionality
Henry Cohen
Legislative Attorney
American Law Division
Summary
In Ashcroft v. Free Speech Coalition, the Supreme Court declared unconstitutional
the federal child pornography statute to the extent that it prohibited material that was
produced without the use of an actual child.1 The case held, in other words, that
pornography produced without the use of a minor, whether drawn or painted, computer-
generated, or produced only with adult actors, is protected by the First Amendment, even
if it appears to portray a minor, unless it is obscene.2 In response to this decision, the
Senate and House passed differing versions of S. 151, 108th Congress.3 This report
compares selected provisions of these bills and comments briefly on their
constitutionality.4
1 535 U.S. 234 (2002).
2 “Obscenity,” which is not protected by the First Amendment, is defined by the Supreme Court
as material that appeals to the prurient interest, is patently offensive, and lacks serious literary,
artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24 (1973). Pornography
that uses an actual child is not protected by the First Amendment, even if it meets none of the
three criteria for obscenity.
3 The House-passed bill began as H.R. 1161 and was adopted (except for section 10) as an
amendment (Title V) to H.R. 1104, which the House passed as S. 151.
4 For comparison of additional provisions, see CRS Report RS21468, Child Pornography:
Side-by-Side Comparison of the Senate-passed and House-passed Versions of S. 151, 108th
Congress. For additional information on the bills’ constitutionality, see CRS Report RL31744,th
Child Pornography Produced Without an Actual Child: Constitutionality of 108 Congress
Legislation. For additional information on child pornography law, see CRS Report 95-406, Child
Pornography: Constitutional Principles and Federal Statutes.
Congressional Research Service ˜ The Library of Congress
Provision Senate-passed bill House-passed bill Comment
Pandering,Section 3 wouldSection 503 would enactThe Senate-passed bill,
falseprohibit advertising,18 U.S.C. § 2252B, whichbut not the House-
advertisingpromoting, presenting,would prohibit advertising,passed bill, includes
distributing, orpromoting, presenting, or“distributes” and
soliciting any materialdescribing any material in“obscene.” To ban
in a manner to causea manner to cause anotherdistribution would
another to believe thatto believe that it is childapparently be
it is an obscene visualpornography producedunconstitutional as
depiction of a minor,with an actual child.applied to protected
or is childspeech; the other verbs
pornography producedwould merely prohibit
with an actual minor.false advertising.
Provision Senate-passed bill House-passed bill Comment
ProvidingSection 3 wouldSection 505 would prohibitInducing a minor to
material toprohibit distributing,providing or showing aparticipate in an illegal
minorsoffering, sending, orperson under 16 materialactivity, by any means,
providing a minor (athat is obscene or childmay be prohibited, but
person under 18) withpornography, whetherit is questionable
child pornography,produced with an actualwhether banning only a
whether producedchild or not, regardless ofmeans that restricts
with an actual child orpurpose.protected speech would
not, to induce thebe constitutional.5
minor to participate in
an illegal activity.Providing or showing
pornography to minors,
even if it is protected
speech, may be
prohibited. 6
AffirmativeSection 3 would allowSection 502(d) wouldRequiring proof that
defensea defendant to avoidallow a defendant to avoideach person was an
conviction by provingconviction by proving thatadult, as the law the
that each person usedno person used inCourt struck down did,
in producing theproducing the alleged childmeant that there was no
alleged child porno-pornography was a minor.affirmative defense if
graphy was an adult orthe material was pro-
none was a minor.duced without actors.
But the bills’ affirma-
tive defenses might be
unconstitutional
because a defendant
other than the producer
might have no way to
know how the material
was produced.
5 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
6 Ginsberg v. New York, 390 U.S. 629 (1968); Sable Communications of California v. Federal
Communications Commission, 492 U.S. 115 (1989).
Provision Senate-passed bill House-passed bill Comment
ChildSection 5 wouldSection 502(a) wouldUnder Ashcroft, it
pornographydefine “childdefine “child pornography”would be unconsti-
with anpornography” toto include a computer-tutional to prohibit any
image require the use of angenerated image that ischild pornography not
indistin-“identifiable minor,”“indistinguishable” fromproduced with an
guishableand would definethat of an actual minor. 18actual minor, even if it
from that of“identifiable minor” toU.S.C. § 1466A, whichis indistinguishable
an actualinclude an imagewould be created byfrom an actual minor.
minor“virtually indis-section 504, would define
tinguishable” from“indistinguishable” to
that of an actualmean “virtually
minor. indistinguishable.”
Depictions,Section 6 would enactSection 504 would enactObscene material is not
obscene or18 U.S.C. § 2252B,18 U.S.C. § 1466B, whichprotected by the First
otherwise, ofwhich would prohibitwould prohibit producing,Amendment, even if it
minorsproducing, distribut-distributing, receiving, oris produced with no
engaging ining, receiving, orpossessing with or withoutactual person. Material
sexuallypossessing with orintent to distribute, anythat lacks serious value
explicitwithout intent todepiction that appears to beis not obscene unless it
conductdistribute, anyof a minor engaging inappeals to the prurient
depiction that appearssexually explicit conduct,interest and is patently
to be of a minorif it is obscene.offensive.
engaging in sexually
explicit conduct, if itEven though obscene
is obscene or lacksmaterial is unprotected,
serious literary,possessing it in “the
artistic, political, orprivacy of one’s own
scientific value.home,” without intent
to distribute, is
prot ect ed. 7
DepictionsNo provisionSection 504 would enactUnder Ashcroft, it
of pre-18 U.S.C. § 1466A, whichwould be unconsti-
pubescentwould prohibit producing,tutional to prohibit any
children,distributing, receiving, orchild pornography not
actual orpossessing with or withoutproduced with an
otherwiseintent to distribute, anyactual minor, regard-
depiction that is, or isless of the apparent age
indistinguishable from,of the child it depicts.
that of a pre-pubescent
child engaging in sexually
explicit conduct.
7 Stanley v. Georgia, 394 U.S. 557, 568 (1969).