{
  "id": "RL31499",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "RL31499",
  "active": false,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 101319,
      "date": "2002-07-15",
      "retrieved": "2016-05-24T20:07:05.192941",
      "title": "Child Pornography Produced Without an Actual Child: Constitutionality of 107th Congress Legislation",
      "summary": "In  Ashcroft v. Free Speech Coalition , the Supreme Court declared unconstitutional\nthe Child\nPornography Prevention Act of 1996 (CPPA) to the extent that it prohibited material that was\nproduced without the use of an actual child. The only possible means that the Court explicitly left\nopen for Congress to try to restrict such material was to ban it, but allow an affirmative defense that\nthe material was produced without using actual children. Even this approach the Court did not say\nwould be constitutional, but merely found no need to decide whether it would be.\n  This approach would shift the burden of proof to the defendant on the question of whether\nactual children were used in producing the material. If the defendant could not meet the burden of\nproof, then he could be punished for child pornography that might or might not have been produced\nwith an actual minor. The Court, however, said that \"[t]he Government may not suppress lawful\nspeech as a means to suppress unlawful speech.\" This suggests that an affirmative defense would\nbe unconstitutional if it were not effectively available to all classes of defendant. It might not\neffectively be available, however, to individuals charged with mere possession of child pornography,\nor to producers of pornography that pre-dated the CPPA, as these defendants might have \"no way\nof establishing the identity, or even the existence, of the actors.\"\n  The three bills that this report examines --  H.R. 4623 , as passed by the House,\n S. 2511 , and  S. 2520  -- would all ban child pornography produced without\nthe use of an actual child. Though all three bills would allow an affirmative defense, to the extent\nthat they applied to defendants who had \"no way of establishing the identity, or even the existence,\nof the actors,\" they raise the same questions that the Court in  Ashcroft  posed as to the\nconstitutionality of such an approach. Though the bills would permit a defendant to prove that no\nminors were used, rather than, as under the CPPA, that only adult actors were used, this would not\nappear to eliminate this problem, and some defendants might be convicted for conduct involving\nlawful speech.\n  Some provisions of the bills, however, appear constitutional. All three bills, for example,\nwould ban attempts to distribute material in a manner that conveys the impression that it depicts a\nminor engaging in sexually explicit conduct, whether or not it does. This proscription, unlike the\none that the Court struck down in  Ashcroft , would not ban any material itself, but would\nban only\nattempts to distribute such material. All three bills would also make it a crime to provide minors\nwith child pornography, whether or not it was produced with an actual child. This would appear\nconstitutional because the Court has found there to be a compelling interest in shielding minors from\nany pornography.\n  This report will be updated if action occurs on any of the bills it discusses.",
      "type": "CRS Report",
      "typeId": "REPORTS",
      "active": false,
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      "topics": []
    }
  ],
  "topics": [
    "American Law",
    "Constitutional Questions"
  ]
}