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S. HRG. 107–974

STOPPING CHILD PORNOGRAPHY: PROTECTING

OUR CHILDREN AND THE CONSTITUTION

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

OCTOBER 2, 2002

Serial No. J–107–108

Printed for the use of the Committee on the Judiciary

(

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COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 23

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 3

prepared statement .......................................................................................... 120

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

prepared statement .......................................................................................... 142

WITNESSES 

Armagh, Daniel S., Director, Legal Resource Division, National Center for 

Missing and Exploited Children, Alexandria, Virginia ..................................... 14

Carnahan, Hon. Jean, a U.S. Senator from the State of Missouri ...................... 6

Collins, Daniel P., Associate Deputy Attorney General and Chief Privacy 

Officer, Department of Justice, Washington, D.C. ............................................ 8

Coughlin, Anne M., Professor of Law, University of Virginia School of Law, 

Charlottesville, Virginia ...................................................................................... 12

Pomeroy, Hon. Earl, a Representative in Congress from the State of North 

Dakota ................................................................................................................... 3

Schauer, Frederick, Professor of Law, John F. Kennedy School of Government, Harvard University, Cambridge, Massachusetts .................................... 10

QUESTIONS AND ANSWERS 

Responses of Daniel P. Collins to questions submitted by Senator Leahy ......... 26

Responses of Daniel P. Collins to questions submitted by Senator Kennedy ..... 41

Responses of Daniel S. Armagh to questions submitted by Senator Leahy ....... 54

SUBMISSIONS FOR THE RECORD 

Allen, Ernest E., President and Chief Executive Officer and Daniel S. 

Armagh, Director, Legal Resource Division, National Center for Missing 

and Exploited Children, prepared statement and attachment ......................... 58

Collins, Daniel P., Associate Deputy Attorney General and Chief Privacy 

Officer, Department of Justice, Washington, D.C., prepared statement ......... 94

Coughlin, Anne M., Professor of Law, University of Virginia School of Law, 

Charlottesville, Virginia, prepared statement ................................................... 114

Hernandez, Andres E., Director, Sex Offender Treatment Program, Federal 

Bureau of Prisons, FCI Butner, Butner, North Carolina, statement .............. 124

Internet Commerce Coalition and U.S. Internet Service Providers Association, 

joint statement ..................................................................................................... 131

Pomeroy, Hon. Earl, a Representative in Congress from the State of North 

Dakota, prepared statement ................................................................................ 146

Schauer, Frederick, Professor of Law, John F. Kennedy School of Government, Harvard University, Cambridge, Massachusetts, prepared statement . 149

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STOPPING CHILD PORNOGRAPHY: PROTECTING OUR CHILDREN AND THE CONSTITUTION 

WEDNESDAY, OCTOBER 2, 2002

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 10:09 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Hatch, and Grassley. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Senator Hatch is now here and we can start. 

I do want to recognize the family of Elizabeth Smart, who are 

here. I want the Smart family to know that both Senator Hatch 

and I have you in our thoughts and prayers. I think I could safely 

say that everybody in my State of Vermont feels the same way. I 

have heard so much about your terrible tragedy when I have been 

home. Like all of us here, if we could, somebody press a button and 

find your daughter, it would be a wonderful, wonderful thing. But 

the outpouring in my own State thousands of miles away of grief 

and prayer and thought for you was something I just wanted you 

to know about. I know Senator Hatch has spoken to individual Senators very movingly about the tragedy. He and I have discussed 

this on a number of occasions. I did also with a former colleague 

I was elected with, Jake Garn, who lives near you. 

Beginning this hearing, it is clear that we are all against child 

pornography. That vote is an easy one. The harder task is finding 

those kinds of legislative solutions that are not merely designed to 

be tough on child pornography in the short term, but can withstand 

the test of time and the scrutiny of the courts. We need a law with 

teeth, but not false teeth. 

This hearing is going to allow experts from all perspectives to 

come together as we work toward a solution that protects our children and honors the First Amendment. Too often, the issues can 

become temptations to demagoguery. The reason Senator Hatch 

and I have joined together on this is that we owe our children a 

lot more than a press conference. We owe them action that will be 

effective in helping prosecutors build solid cases and then obtain 

convictions that actually stick. 

2

Earlier this year, the Supreme Court in Ashcroft v. Free Speech 

Coalition struck down portions of the 1996 Child Pornography Protection Act. The Ashcroft decision should not have been too surprising, as this Committee had been warned in 1996 that parts of 

the law were unconstitutional. So we have to work now to make 

sure we do not repeat those earlier mistakes. 

We cannot just have quick fixes that do more harm than good. 

Even with parts of the CPPA struck down in the Ashcroft decision, 

there are many effective Federal laws dealing with child pornography still on the books. A review of the Department of Justice and 

FBI press releases show that Federal enforcement of the child pornography laws continues, and it is resulting in people being investigated, prosecuted, and sent to jail. We have to see if there are 

other tools that we need. 

That is again why Senator Hatch and I joined together in S. 

2520, the PROTECT Act, shortly after the Supreme Court’s decision in the Ashcroft case. It is a response to the decision, not a 

challenge to it. 

In Ashcroft v. Free Speech, the Supreme Court voted seven-to-two 

to strike down a provision banning virtual child pornography, that 

is, child porn made with morphed computer images, without real 

children. They faced a difficult task, the Supreme Court did, in trying to balance the First Amendment with the computer age. The 

Internet has a lot of areas that we can all benefit from, but it also 

has a potential for harm in some areas. The majority opinion found 

that the CPPA was overly broad, that it covered such non-obscene 

movies as ‘‘Traffic’’—I believe Senator Hatch was one of the stars 

of that movie—one of the major stars of that movie—‘‘Romeo and 

Juliet’’—he was not a star of that movie—and ‘‘American Beauty.’’

So we have worked together to try to get a bill within these limits. We have narrowed the definition of virtual child porn by requiring consideration of literary or educational value so that films 

like ‘‘Traffic’’ are not covered and banned. It fixes the specific concerns raised by the Supreme Court decision. I look forward to hearing from the constitutional scholars here today if there are further 

refinements warranted. It is not going to do our children any good 

if we write a law that is simply going to be thrown out again. We 

want a law that works. 

Our legislation, unlike the administration’s proposal, provides 

new tools to help police and investigators prosecute child pornography cases. As a former prosecutor, I know these tools are going 

to help. We have got the victim shield law, so we have a first-time 

ever children’s shield law to keep the identity of child victims out 

of court, protect them from being traumatized again in the court 

process. In my days as a prosecutor, that is the thing I worried 

about the most, when you had a child who had been a victim, they 

will become a second victim in the court proceedings or in the news 

articles or anything else. 

We have sentencing enhancement for child sex offenders. The 

current sentencing guidelines carry a lower sentence for someone 

who actually travels across State lines to sexually molest a minor 

than for somebody who possesses child pornography that has 

crossed State lines, so we correct that. 

3

We have a new felony for using pornography to induce a minor 

to engage in illegal activity. We have notice requirements to prevent surprise defenses. We create a right of action for victims. This 

I like, because those who peddle child porn, they are going to get 

hit where it hurts the most, in their pocketbook. 

It is far easier to come up with a quick fix without attention to 

constitutional limits, so that is why we have tried to improve the 

Justice Department’s proposal because we want it to stand up to 

a court challenge. The first one did not, as the Ashcroft case shows. 

We want to make sure when the next case goes up, it does stand 

up. 

I hope we can do that. I hope we can protect our children and 

do it within the constitutional restrictions. 

[The prepared statement of the Chairman Leahy appears as a 

submission for the record.] 

Chairman LEAHY. Senator Hatch, I appreciate so much working 

with you on this, as I have on so many other issues we have 

worked together on. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Thank you, Mr. Chairman. I appreciate working 

with you, as well, and I appreciate you holding this hearing on this 

critically important piece of legislation. 

As you know, a number of us have worked for years to protect 

our nation’s greatest resource, and that is its children. I am 

pleased to report that our efforts have always enjoyed strong bipartisan support. The protection of our children, of course, matters immensely to those of us on both sides of the aisle. 

I appreciate having members of the Smart family with us here 

today. None of us can express adequately how deeply we feel about 

the ordeal that you folks have been through, and others who have 

also suffered because of some of the terrible things that go on in 

not just our country, but around the world, and a lot of it comes 

from smut on television and movies and from people who are mentally ill and sick and some who are just plain criminals. But our 

hearts and prayers are with you. We just want you to know that, 

and with all folks who are suffering from these type of reprehensible activities and crimes. 

We recently introduced, along with——

Chairman LEAHY. I understand Congressman Pomeroy has to go 

to vote——

Senator HATCH. Why don’t we have him give his statement——

Chairman LEAHY. Do you have time to speak before you vote? 

Mr. POMEROY. I will give you the short version. 

Senator HATCH. I will interrupt mine for you. 

STATEMENT OF HON. EARL POMEROY, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF NORTH DAKOTA 

Mr. POMEROY. Mr. Chairman, Senator Hatch, thank you for allowing me just to briefly say that the matter you have called for 

hearing today is, in my opinion, urgent, that at the very time Internet technology allows for the dissemination of child pornographic 

materials more than ever before, we have a serious problem in the 

4

wake of the Supreme Court ruling striking down prohibitions 

against virtual child pornography. 

In visits with prosecutors in North Dakota, they have told me 

their abilities to move cases have been very seriously disrupted by 

what they now carry as an offensive burden in prosecution of conclusively showing that the children in the materials were real children, and something that is all but impossible in light of the global 

distribution of these materials under the Internet. 

I believe that the legislation Senator Carnahan has advanced, 

identical to what we have advanced in the House and passed 413 

to eight, is carefully crafted and thoroughly considered. The Chairman has it precisely right when he says we need a law that will 

withstand court muster, and I believe in working with the Justice 

Department, the bill that passed the House was created for that 

express purpose. 

I do not have time to go into the particulars in terms of how it 

passes muster, but I believe it was crafted not as a press release 

to show we did something, but to actually put back on the books 

the prohibitions that we need to protect our children. 

If the Senate could move on this at this time, I believe it would 

be extremely important. I believe that cases literally are awaiting 

prosecution or determinations are being made by prosecutors not to 

prosecute in light of the state of the law of the land as it is today. 

I think that prompt action on the House-passed bill, drafted in bipartisan cooperation with the Justice Department, would allow us 

to get something to the President and have it actually enacted before we go home and not have this unfortunate state of the law of 

the land linger any longer than it should be. 

I commend Senator Carnahan for bringing this important legislation up on the Senate side and urge your favorable consideration. 

Thank you again for letting me speak today. Thank you. 

Senator HATCH. Thank you. 

Chairman LEAHY. Thank you very much, Congressman. I appreciate you waiting for that. You have worked extremely hard on this 

and I wanted you to have a chance to testify. I especially want to 

thank my good friend from Utah for yielding to you. 

Senator HATCH. I hope you make your vote. 

Mr. POMEROY. Since Senator Conrad and Senator Dorgan never 

defer to me, I was very pleased that you did, Senator. 

[Laughter.] 

Senator HATCH. You will find me always doing that. 

[The prepared statement of Mr. Pomeroy appears as a submission for the record.] 

Senator HATCH. I recently introduced, along with Senator Feinstein, the comprehensive Child Protection Act of 2002, and I hope 

we can get support for that bill, as well, and I want to thank you 

especially, Mr. Chairman, for cosponsoring our efforts to protect 

our children in the troubling area of child pornography, the PROTECT Act of 2002. I also appreciate you, Senator Carnahan, and 

am glad to have you here before the Committee and we welcome 

you. 

I do not think it overstates the matter to state that child pornography represents one of the greatest dangers to the young and 

most vulnerable members of our society. Society has benefitted 

5

greatly from the technological advances of the last decade, but an 

unfortunate byproduct of the growth of technology and the rise of 

the Internet in our country has been the proliferation of smut involving children. Child pornography itself is repulsive, but even 

more damaging and more concerning are the purposes for which it 

routinely is used. Perverts and pedophiles not only use this smut 

to whet their sick desires, but also to lure defenseless children into 

unspeakable acts of sexual exploitation. 

In sum, child pornography is a root from which more evils grow. 

It creates a measurable harm in our society. On this record, I am 

absolutely convinced that Congress must act and act decisively. 

Mr. Chairman, I am a staunch defender, as you know, of the 

First Amendment. Everyone not only has a right to his or her opinion, but also a right to talk about it. We justifiably should be proud 

that the United States leads the world in fostering tolerance for the 

free exchange of ideas, particularly where political views are discussed. But there is no place for child pornography even in our free 

society. I believe that the overwhelming majority of Americans 

stands shoulder to shoulder with us on this issue. 

Earlier this year, a majority of the Supreme Court struck down 

some provisions of the CPPA under the First Amendment. Let me 

make clear that I respect the Supreme Court’s role in interpreting 

the Constitution. But that decision left gaping holes in our nation’s 

ability to effectively prosecute child pornography. The PROTECT 

Act is designed to patch these holes in a way that permits effective 

prosecutions in a manner that does not offend the Constitution. 

We can all agree that the government has a compelling interest 

in protecting children, policing pedophiles, and enforcing our child 

pornography laws. The PROTECT Act does many things to aid 

these efforts. Let me just briefly summarize some of its most important provisions. 

First, the Act plugs the loophole that exists today after the Supreme Court’s ruling in Ashcroft v. Free Speech Coalition. In the 

wake of that decision, child pornographers can effectively escape 

prosecution by claiming that their sexually explicit material did not 

actually involve real children. Technology has advanced so far that 

even experts often cannot say with absolute certainty that an 

image is real or ‘‘virtual’’ computer creation. 

For this reason, the PROTECT Act permits a prosecution to proceed when the child pornography includes persons that appear virtually indistinguishable from actual minors, and when this occurs, 

the accused is afforded a complete affirmative defense by showing 

that the child pornography did not involve a minor. 

The Act also prohibits any depictions of minors or apparent minors in actual acts of bestiality, sadistic or masochistic abuse, or 

sexual intercourse where such depictions lack literary, artistic, political, or scientific value. This type of hard core sexually explicit 

material merits our highest form of disdain and disgust and is 

something that our society ought to be doing its best to eradicate. 

Finally, the PROTECT Act directs the Attorney General to appoint 25 more trial attorneys who are dedicated to the enforcement 

of Federal child pornography laws. I think Congress needs to send 

a clear, unequivocal message to those child smut peddlers who continually evade our laws and flout our shared notions of decency. 

6

These folks are in our cross-hairs, and I will just say those who are 

in our cross-hairs, your depravity will no longer go unchecked. 

Mr. Chairman, I look forward to hearing from the distinguished 

witnesses who appear before the Committee today, but before we 

begin, I want to note the hearings that were held on this issue in 

June 1996 when I was Chairman. The information that we gathered during those hearings happens to be still relevant today. We 

certainly have not forgotten all that we learned back then about 

the problems of child pornography, and for that reason, I view this 

hearing as a very important supplemental one. 

Mr. Chairman, I would ask that the complete record of those 

hearings be placed into the record so that all who look at what we 

do with the PROTECT Act today fully understand and appreciate 

how closely and carefully we have been studying this issue for 

years now. It is an issue that I feel very strongly about and on 

which I would like to speak for quite some time. 

But so that we can turn more quickly to our distinguished panel 

and, of course, Senator Carnahan, as well, Mr. Chairman, I would 

ask that my complete statement be placed in the record at this 

time. 

Chairman LEAHY. It will be. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

Chairman LEAHY. Let us, if we might on the prior hearing, because that is on file, whether that might, just logistically and also 

for the expense of it, whether that may be referenced with a copy. 

Senator HATCH. Sure. 

Chairman LEAHY. But we will work out whatever works best for 

you. 

Senator HATCH. That would be fine. 

Chairman LEAHY. Senator Carnahan, I am delighted to have you 

here and appreciate your coming by. I appreciate your courtesy in 

letting us move things around so that Congressman Pomeroy could 

get back to the other side of the Hill to vote. Please go ahead. 

STATEMENT OF HON. JEAN CARNAHAN, A U.S. SENATOR FROM 

THE STATE OF MISSOURI 

Senator CARNAHAN. Thank you, Mr. Chairman. I, as well, am 

going to have to go to the Commerce Committee following this and 

so I appreciate you recognizing me at this time. Thank both you 

and Senator Hatch for convening this hearing and for your leadership on this very important issue. 

We are all here today with a common purpose of addressing a 

problem that threatens children across our country, child pornography. Child pornography is one of the most heinous forms of child 

abuse. Each year, an estimated 88,000 children fall victim to sexual 

abuse. Often, child pornography plays a key role in these crimes. 

Law enforcement officers have worked hard to reduce the incidence of child abuse. But in the battle against child pornography, 

their hands are often tied because we failed to provide law enforcement agencies with the tools they need to protect our children. 

Computer-generated child pornography inflicts harm on our society 

even though actual children are not involved in its production. We 

know pedophiles show these materials to children. They use these 

7

images to convince children that these practices are acceptable. 

They also use the images to convince themselves that their acts are 

not wrong. 

The magnitude of our virtual child pornography problem is astonishing. The Internet has made it far too easy to engage in the 

widespread anonymous distribution of child pornography. In 1999, 

a single child pornography website recorded 256,000 hits and the 

download of 4.2 million images, not in one year, Mr. Chairman, not 

in a half-year, but in three months alone. According to an Internet 

management firm, in a six-month period last year, the number of 

child pornography sites tripled. 

So a law that does not deal with the problem of virtual child pornography really is not providing children the protection they need. 

Unfortunately, the Supreme Court decision in the Free Speech Coalition case has made it far more difficult to take action against this 

evil. 

The Court concluded that the government cannot put a pornographer in jail unless it can be proven that real children were used 

in the production of the pornography at issue. With modern technology, however, pornographers can digitally alter the features of 

real children so they cannot be identified, or they can digitally create images of children. So in some cases, the government will not 

be able to prove that real children have been used to produce the 

pornography and the pornographer will get off scot-free. 

The bill I have introduced, the Child Obscenity and Pornography 

Protection Act, responds to the difficulties created by the Free 

Speech Coalition case. It provides that a person who distributes 

virtual child pornography has committed a crime unless he can 

prove that real children were not used to create the pornography. 

The affirmative defense relieves the government of the burden of 

proving the impossible and puts the teeth back into our criminal 

laws. 

The bill also provides that virtual images of young children engaging in sexual conduct is obscene and, therefore, not entitled to 

consitutional protections. 

This bill was developed by the Department of Justice and passed 

by the House of Representatives, as Representative Pomeroy recently mentioned, with just minor changes, by a vote of 413–8. I 

understand that the members of this Committee have endorsed a 

similar but separate bill. But the goals of both pieces of legislation 

are the same: To protect children from the direct and indirect dangers of virtual child pornography. 

I hope that in the next few days we have remaining in this session, we can come together with the Justice Department and our 

colleagues in the House, combine the best elements of both bills, 

and send it to the President. The seriousness of this problem merits that we take prompt action, and I hope we can send a bill to 

the House before the recess. 

I do not think we should leave our prosecutors without the tools 

they need in this fight against child pornography any longer. I 

thank you, Mr. Chairman, and I look forward to working with this 

Committee in the coming days. 

8

Chairman LEAHY. Thank you very much, Senator. I know you do 

have a Commerce Committee meeting right now, so I appreciate 

you being here, unless, Senator Hatch, if you have any questions. 

Senator HATCH. No, thanks. We are just happy to have you. 

Chairman LEAHY. Thank you very much. 

On the first panel, we will have Dan Collins, Associate Deputy 

Attorney General and Chief Privacy Officer at the Department of 

Justice, formerly Assistant U.S. Attorney in the Central District of 

California. 

Frederick Schauer, Professor of Law at the JFK School of Government, teaches also at Harvard Law School and is a leading expert in First Amendment issues including obscenity laws. He 

served as Commissioner on the Meese Commission on Pornography, was a primary author of its findings, and also keeps an eye 

on a very nice part of Vermont during the summer, Woodstock. Am 

I correct on that, Professor? 

Mr. SCHAUER. South Woodstock. 

Chairman LEAHY. South Woodstock. 

Mr. SCHAUER. I wish I could spend more of the year there, 

but——

Chairman LEAHY. And you have to understand, if you live in 

Woodstock, there is Woodstock, there is South Woodstock. It is like 

Westminster and Westminster West. You have to make sure you 

get it all right. 

Professor Coughlin is a professor at the University of Virginia 

Law School, an expert in constitutional law and criminal law and 

procedure. I wanted her to be here because these are crimes we are 

talking about. She clerked for Judge John Newman of the U.S. 

Court of Appeals for the Second Circuit, U.S. Supreme Court Justice Lewis Powell, and I do not want you to think we are stacking 

the deck here, Senator Hatch, but she grew up in Rutland, 

Vermont, is a graduate of Mount St. Joseph’s Academy. I have spoken there and know it well. 

Ernie Allen is not going to be here. Daniel Armagh is the Director of Legal Education at the Center for Missing and Exploited 

Children, a center we have worked with in this Committee that has 

helped recover 65,000 children. He previously served as Director of 

the American Prosecutors’ Research Institute’s National Center for 

Prosecution of Child Abuse. He is Assistant D.A. for Lawrence 

County, Pennsylvania. Again, as I recall, you were involved in prosecuting crimes against children, am I correct on that, Mr. Armagh? 

Mr. ARMAGH. That is correct, Mr. Chairman. 

Chairman LEAHY. Thank you. So, Mr. Collins, let us begin with 

you, sir. 

STATEMENT OF DANIEL P. COLLINS, ASSOCIATE DEPUTY ATTORNEY GENERAL, AND CHIEF PRIVACY OFFICER, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. COLLINS. Thank you, Chairman Leahy and Senator Hatch. 

I appreciate the opportunity to testify here today on behalf of the 

Department of Justice concerning this important subject. 

The sexual abuse of children is an evil that no decent and civilized society can or should tolerate in any form. The harm inherent in abusive sexual conduct is bad enough. The fact that such 

9

abuse may be photographed or videotaped only multiplies the scope 

of the harm inflicted on the young victims. 

As the Supreme Court has recognized, because child pornography 

permanently records the victims’ abuse, the very existence of such 

materials causes the child victims continuing harm by haunting 

the children in years to come. With the advent of the Internet, this 

harm has been magnified exponentially. Pedophiles can, with the 

click of a few keys, instantly make such materials available to literally thousands of persons. Moreover, as the Supreme Court has 

also stated, evidence suggests that pedophiles use child pornography to seduce other children into sexual activity. Accordingly, the 

Court has properly held that the First Amendment provides no protection to such materials and that the government has compelling 

interests that justify attempting to stamp out this vice at all levels. 

Over the years, the Congress, by large bipartisan majorities, has 

enacted a number of statutes designed to address the serious problems presented by the manufacture, possession, and trafficking of 

child pornography. One such law, the Child Pornography Prevention Act of 1996, was favorably reported by this Committee, as Senator Hatch noted, and was reported by a vote of 16 to two. The Department of Justice in both the current and prior administrations 

vigorously defended the validity of this important law in the courts. 

Unfortunately, in April of this year, a divided Supreme Court 

held that this legislation was, in part, facially unconstitutional. 

The Department was obviously disappointed by the Court’s decision. But, nonetheless, we believe that the Court’s decision and the 

Constitution leave the Congress with ample authority to enact a 

new, more narrowly tailored statute that will allow the government 

to accomplish its legitimate and compelling interests without interfering with First Amendment freedoms. 

The Department is deeply grateful to the leadership shown by 

the Congress in moving promptly to work with us to address this 

important issue. A bipartisan group of Representatives and Senators joined the Attorney General on May 1 to announce a legislative proposal aimed at strengthening the child pornography laws in 

the wake of the Supreme Court’s decision. As that bill, which was 

introduced in the House as H.R. 4623, moved through the House 

Judiciary Committee, we were pleased to work with members on 

both sides of the aisle in further revising the bill so as to ensure 

that it would provide maximum protection to our nation’s children 

while complying with the Supreme Court’s decision and the Constitution. 

Likewise, I have been pleased to meet with members of the staff 

of this Committee on both the majority and minority side in connection with the drafting of S. 2520, and in particular, the Department is deeply grateful to the leadership shown by Senator Hatch 

in introducing that legislation and in promptly moving to address 

this important issue. 

I have in my written statement detailed a number of largely 

technical suggestions with respect to the legislation that is before 

the Court—that is before the Congress, rather. There are points of 

difference. We can make improvements in both the House bill and 

in the Senate version. But the basic approach of the two bills at 

a conceptual level is essentially very similar. 

10

We strongly believe that a prompt and effective legislative response is necessary. In the Free Speech Coalition decision, the 

Court held that the 1996 Act’s definitions of virtual child pornography and pandering were facially unconstitutional. But by invalidating these important features of the 1996 Act, the Court’s decision leaves the government in an unsatisfactory position. Already, 

defendants often contend that there is reasonable doubt as to 

whether a given computer image—and it should be noted that most 

prosecutions involve materials stored and exchanged on computers—whether it was produced with an actual child or by some 

other process. There are experts who are willing to testify to the 

same effect on defendants’ behalf. Moreover, as computer technology continues its rapid evolution, this problem will only grow increasingly worse. Trials will increasingly devolve into jury-confusing battles of experts. 

We believe that the Congress has a strong basis for action and 

for taking additional measures in response to the Court’s decision. 

We look forward to working with the Committee to resolve the remaining issues and to get a bipartisan piece of legislation that can 

be presented promptly to the President. 

Chairman LEAHY. Thank you very much. 

[The prepared statement of Mr. Collins appears as a submission 

for the record.] 

Chairman LEAHY. Professor Schauer? 

STATEMENT OF FREDERICK SCHAUER, PROFESSOR OF LAW, 

JOHN F. KENNEDY SCHOOL OF GOVERNMENT, HARVARD 

UNIVERSITY, CAMBRIDGE, MASSACHUSETTS 

Mr. SCHAUER. Mr. Chairman, thank you very much for inviting 

me to be here. I appreciate the honor. Let me take this opportunity 

also to thank Senator Hatch for his support of the work of the Attorney General’s Commission on Pornography 16 years ago and my 

participation on that commission, in particular. 

As my statement indicates, I have been involved with issues of 

obscenity and pornography law for close to 30 years now, and in 

addition to other issues on which I write, I have been writing about 

the largely technical side as well as the larger policy side of obscenity and pornography law for decades now. Most of my comments, 

therefore, will be addressed to the somewhat more technical side 

of this question. 

But let me preface those comments by observing that there are 

demonstrable disadvantages to enacting legislation that has a low 

to no probability of being upheld by the Supreme Court, not only 

for reasons that relate to the rule of law, not only for reasons that 

relate to expense and delay, but because one of the things that we 

are increasingly seeing from the Supreme Court, and admirably so, 

is a degree of deference to Congressional interpretations of the 

Constitution in areas in which the Congressional interpretations of 

the Constitution are within a plausible range of preexisting Supreme Court opinions. I would strongly urge the Committee and 

the Congress to encourage this degree of deference by the Supreme 

Court to what you do by staying within a range that will indicate 

a desire to cooperate with the Court and, therefore, encourage this 

deference. 

11

Let me address three particular issues in S. 2520. One of the dimensions of S. 2520 is its discussion and criminalization of the 

pandering of child pornography. In criminalizing the pandering of 

child pornography and doing so in a way that I believe survives the 

objections of Ashcroft v. Free Speech Coalition, S. 2520 keys the 

crime of pandering to the fact that the material being pandered is 

itself unlawful, whether unlawful obscenity or unlawful child pornography. 

The most significant difference in this regard between S. 2520 

and H.R. 4623 is the extent to which the Senate bill, desirably, in 

my view, and consistent with Supreme Court views about commercial speech and commercial advertising, makes it clear that the 

pandering or advertising of illegal materials is not constitutionally 

protected, not protected by the First Amendment. Once we loose 

the moorings in otherwise illegal material by virtue of either its obscenity or child pornography dimensions, the pandering crime becomes somewhat to much more debatable, and in that reason, it is 

a much safer course to proceed as S. 2520 does. 

Second, in defining child pornography, S. 2520 admirably comes 

reasonably close to but not identical with the definitions of obscenity that we see in a number of previous Supreme Court obscenity 

decisions. That is, in 2256(8)(d), the provisions by requiring the 

prosecution to show, as Senator Hatch mentioned in his opening 

statement, the lack of serious literary, artistic, political, or scientific value comes close enough to the Supreme Court’s definition 

of obscenity that I believe that the differences, which may be desirably differences on the dimension of both patent defensiveness and 

appeal to the prurient interest, are ones that are likely to encourage the Supreme Court to defer to the Congressional definition of 

obscenity and to defer to the Senate’s view that at least in this context, the materials encompassed by 2256(8)(d) represent a Senatorial or Congressional specification of what obscenity means in the 

child pornography context. 

Finally, on the question of the affirmative defense, although Justice Kennedy in the Supreme Court opinion expressed some skepticism about whether an affirmative defense is an appropriate vehicle for carrying First Amendment values, as my written statement 

indicates, I believe he was mistaken in this regard and the tentativeness of those statements in the opinion lead me to believe 

that there is still some room for an affirmative defense in this area 

precisely to deal with exactly the problem of proof that Mr. Collins 

and others have mentioned. 

By dealing with the two specific issues raised by Justice Kennedy 

and by a number of other modifications that one finds in S. 2520, 

I believe that the idea of an affirmative defense is carrying the 

First Amendment burden rather than requiring the prosecution to 

negate the idea of the First Amendment is an important and desirable vehicle in accommodating to the Supreme Court opinion while 

not withdrawing what is perhaps the most important dimension of 

the prosecutor’s tool box in this area. I thank you. 

Chairman LEAHY. Thank you very much. 

[The prepared statement of Mr. Schauer appears as a submission 

for the record.] 

Chairman LEAHY. Professor Coughlin? 

12

STATEMENT OF ANNE M. COUGHLIN, PROFESSOR OF LAW, 

UNIVERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VIRGINIA 

Ms. COUGHLIN. Thank you, Mr. Chairman. I want to start, as 

well, by thanking you very much for the invitation to appear and 

testify today. It is a special honor for me to be here because, as you 

say, I do hail from the great State of Vermont, and I want to just 

snatch one second from my time to mention how thrilled my dad 

will be to hear that I was able to greet you in person and to thank 

you for your public service on behalf of the State and the whole nation. 

Chairman LEAHY. Be sure you take that back to him. Thank you 

very much. 

[Laughter.] 

Ms. COUGHLIN. Like the other witnesses here today, I have submitted to the Committee written testimony, which I am going to 

just briefly outline and amplify slightly and on which I am happy, 

of course, to take questions. 

As you mentioned, Mr. Chairman, my areas of expertise are 

criminal law, criminal procedure, and I also teach and research in 

the area of sex discrimination law. Like Professor Schauer, I have 

done my best to evaluate the constitutionality of these bills, the extent to which they measure up to the First Amendment guarantees. I do want to emphasize that Professor Schauer’s best may be 

better than mine because he is a First Amendment expert and I 

am not. I can, however, offer some advice on the First Amendment 

questions and I also want to focus particularly on criminal law 

matters and the way in which the criminal law approaches some 

of the problems you are considering here today. 

One thing that I want to highlight now is the way in which we 

are talking about thinking about the core or primary harms that 

the child porn laws aim to eliminate. We talk, of course, about the 

use of actual children in the production of child pornography, and 

what I want to say very clearly on the record is when that occurs, 

when actual children are used in the production of child pornography, that core or primary harm is one that the criminal law calls 

rape. We have been using language here like abuse, exploitation, 

seduction. The criminal law calls sex with a minor rape. So the 

people who are using actual children to make child pornography 

are, in the eyes of the criminal law, at least, arranging to have 

these children raped so that the pornographers can record the 

rapes and then sell those recordings to others. These are among 

the most serious harms that the criminal law knows, aims to punish and deter. 

Under the Supreme Court precedents, as our testimony has outlined, namely the Ferber case, of course, the government is free to 

prohibit and punish the production of porn made with actual children. I suppose it should go without saying that this type of pornography falls well outside the protections of the First Amendment. 

But here is the problem, of course, and it is one that has been 

alluded to in the record. The problem is that if the definition of 

regulable child pornography is limited to that definition, the one 

set forth in Ferber, the government’s efforts to deter and punish 

child pornographers look likely to be seriously eroded. The parVerDate 0ct 09 2002 15:30 Aug 13, 2003 Jkt 088680 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 C:\HEARINGS\88680.TXT SJUD4 PsN: CMORC
13

ticular problems the Committee has had in mind are those that are 

created by the phenomenon of virtual child pornography. With the 

proliferation of virtual pornography, child pornographers seem to 

be able to escape prosecution and convictions, convictions that we 

think, or certainly that I believe, firmly are just convictions. 

As I see it, there are two different arguments that the criminal 

law would allow of child pornographers to make in these cases. One 

has been alluded to here. The first argument is that the defendant 

may claim that the government cannot prove that the porn used 

actual child pornography as opposed to virtual ones. We are hearing that the computer technology is so sophisticated that it is literally impossible, at least very, very difficult for the government to 

separate the virtual image from the real one, and in such a case, 

I take it we might have a reasonable doubt as to guilt. 

The other argument that I wanted to mention, one that I expect 

will be raised in these cases, is a different one. This is a mental 

state argument. The defendant might argue that the prosecution 

cannot prove that he possessed guilty knowledge. That is, the prosecution cannot prove that he knew that the images were made with 

actual children rather than with virtual ones. If it is true that it 

is so difficult for the government to distinguish the virtual from the 

real in this context, well, then the defendant plausibly can claim 

that he did not think any real kids were involved. Who can tell? 

Virtual kids, real kids, you cannot tell the difference. Therefore, he 

lacks guilty knowledge. 

In my judgment, both of these types of arguments should be shut 

down and the Senate bill, S. 2520, makes a responsible and, I 

think, very good faith effort to doing just that. The key question 

before the Committee is whether, and if so, precisely how to craft 

a provision that forecloses these defense claims. As you know, the 

CPPA was designed to shut these claims down, but the Supreme 

Court found that the CPPA cut too broadly. 

What the Senate bill does, and Professor Schauer has outlined 

how this provision works, is that it provides a new definition of illegal child pornography that is somewhat broader than Ferber, broad 

enough to outlaw the kinds of illegitimate arguments, defense arguments, I just mentioned, but yet that definition is narrower than 

the CPPA provisions that the Supreme Court rejected in Free 

Speech Coalition and it also appears to respond exactly to the kinds 

of concerns that the Free Speech Coalition case raised. 

I fear that the House bill, that is H.R. 4623, is not as carefully 

calibrated and is not likely to withstand a constitutional challenge. 

I also want to mention—I realize my time is up—that the Senate 

bill contains a number of very important and, by now in the criminal law, traditional protections for victims in this area. It enacts 

victim shield protections. It enacts, or would enact, new prohibitions to punish and deter the distribution of child pornography to 

children, and also contains important directives to the Sentencing 

Commission to correct some of these strange anomalies in the level 

of punishment that we allow in these cases. Thank you. 

Chairman LEAHY. Thank you very much, Professor. 

[The prepared statement of Ms. Coughlin appears as a submission for the record.] 

Chairman LEAHY. Mr. Armagh? 

14

STATEMENT OF DANIEL S. ARMAGH, DIRECTOR, LEGAL RESOURCE DIVISION, NATIONAL CENTER FOR MISSING AND 

EXPLOITED CHILDREN, ALEXANDRIA, VIRGINIA 

Mr. ARMAGH. Thank you, Mr. Chairman. Mr. Allen asked me to 

convey his regrets about his inability to attend. 

Chairman LEAHY. Thank you. 

Mr. ARMAGH. Mr. Chairman and distinguished members of the 

Committee, I am here today to talk about the pragmatic implications for law enforcement and prosecutors. At the National Center 

for Missing and Exploited Children, pursuant to Congressional 

mandate and the support of the members of this Committee, historically—Senator Hatch has been active since the 1996 legislation 

initiative, and I think Senator Hatch’s point that this is a supplemental hearing to the legislative record is critical. I think that is 

something that we have to understand. The long-term fix for this 

is a constitutional statute. That has been reiterated time and time 

again. 

There was a time in this country, from a prosecutor’s perspective, 

where the child pornography problem was contained. It was certainly much more controlled than it is today, and that is in large 

part, of course, to the Internet and the World Wide Web and people 

having computers in their homes. 

The issue of whether or not the existing child pornography statutes were created to protect only those children who are depicted 

in child pornography was addressed by the Court, and I think we 

have to craft the statute, and I think the present statute, S. 2520, 

goes a long way in doing this, in terms of protecting children. 

There has to be a history and findings that supplement the findings in the 1996 bill that makes the nexus a strong and direct connection, that people who possess child pornography or child pornography that is virtually indistinguishable from child pornography 

that is using actual children, use those visual depictions to groom, 

coerce, seduce actual children into sexually exploitive relationships 

or, as one colleague has just said, they rape the children by using 

this kind of material. 

This decision in Ashcroft has had a chilling effect on law enforcement. The National Center for Missing and Exploited Children is 

the 911 of the Internet, and we get complaints from the public as 

well as reports from Internet service providers on a daily basis. We 

have just received our 90,000th report of child pornography being 

on the Internet. Law enforcement post–Free Speech does not know 

what to do in terms of if they are investigating a site and it is a 

webstream or web cam and it is showing a child being abused. 

They tell me that they do not know whether they should get a 

search warrant, exigent circumstances, or is this protected speech. 

and what happens if we go out and break down the door and seize 

what we thought was a child being sexually exploited, only to discover that this was, in fact, virtual child pornography? So that has 

a chilling effect on law enforcement’s efforts to effect and implement the child pornography statutes. 

One other concern that a prosecutor recently raised was a threat 

from a defense lawyer who said, if you do not drop these charges 

against my client, we are going to take civil action against you 

under the Privacy Protection Act because these visual depictions 

15

were something that we intended to publish. They are documentary 

materials. We intend to publish them. Your seizure of these materials violated my client’s rights under the Privacy Protection Act. 

That is a concern. And obviously, the concern of identifying children for prosecutors in these cases has already been addressed. 

We live in a society now, Mr. Chairman, where the pedophile 

community, the situational preferential offenders can now go to the 

Internet and get support, advice, they get encouragement for a lifestyle that praises preying on children, adult-child relationships. 

This was not so before the Internet. They were somewhat ostracized by the society. 

So when the prosecutors call me and say, what can I do, because 

I am looking at motions to dismiss or motions to suppress, there 

is some good news. But let me reiterate that a long-term fix would 

be a constitutional statute with teeth. 

Some of the things that we are facing as prosecutors are jury instructions by the court that instructs the jury to say, if you do not 

find beyond a reasonable doubt that the visual depictions in the 

government’s case are of actual children, then you must find for the 

defendant. 

Another problem that was related to earlier was we have a case 

down in Florida where the defendant is saying, I did not know this 

was actual children. In fact, the guy that I purchased these DVDs 

from that contains visual depictions of child pornography, he told 

me they were virtual child pornography, that no real children were 

being used. And the evidence that the prosecutor used was, well, 

in order to make these visual depictions, you have to have a lot of 

money. You have to have a lot of money to make visual depictions 

that really are virtually indistinguishable from actual children, and 

so that defense failed because the defendant said, well, I did not 

make these. I just bought them for $100 from the guy who said 

they were virtual children. 

So that defense is there, and we are dealing with an adult child pornography industry that made over $1 billion last year, and the 

experts in that industry anticipate in the next five years, they will 

have $5 to $7 billion in profit, Mr. Chairman, and I submit to this 

Committee that that is ample resources to make virtually indistinguishable visual depictions of child pornography. 

I see my time is up, and I want the chair and the members of 

the Committee to know that the National Center stands as a resource for you on this issue. 

Chairman LEAHY. I thank you, Mr. Armagh. As you know from 

your own experience in prosection, I think it is safe to say, and I 

do not think there is any prosecutor who would disagree with me, 

one of the most troubling and disturbing and disheartening things 

is to have a case that involved a child that had been molested for 

whatever the motivation. I think I still have nightmares of some 

of the cases I saw, and I know you must, too. I appreciate you 

being here. 

Mr. ARMAGH. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Armagh appears as a submission 

for the record.] 

Chairman LEAHY. Mr. Collins, the Carnahan bill, S. 2511, is very 

similar to the administration’s original legislative proposal and to 

16

the House bill about which we just heard Mr. Pomeroy testify and 

which you support. So am I correct that the Department of Justice 

supports the bill that Senator Kay Bailey Hutchison and Senator 

Carnahan introduced in the Senate? You mentioned only the House 

bill, and they seem similar bills. 

Mr. COLLINS. My understanding is that the Carnahan–Hutchison 

bill is identical to the originally introduced form of the administration bill, H.R. 4623. As I have noted in my written statement, the 

House legislation went through quite a bit of markup as it worked 

its way through subCommittee, Committee, and then through the 

floor. We believe that a number of those changes, actually on further consideration, strengthen the bill, strengthen its defensibility 

from a constitutional perspective and some of the more technical 

comments that we have made in our written statement would have 

applied equally to the original bill and reflect some of the——

Chairman LEAHY. Did you support the bill? 

Mr. COLLINS. We would support the bill with the modifications 

made by the House. 

Chairman LEAHY. Would you support the House bill? 

Mr. COLLINS. Yes. I think that all of these bills are very close to 

one another conceptually. Even where the language is different, the 

conceptual approach is very similar, and I think it is very easy to 

look at the issues, identify them, and then say we can take the best 

of both and come up with a compromise bill that will accomplish 

what needs to be done. 

Chairman LEAHY. I was thinking about what Mr. Armagh was 

saying about the amounts of money, and let me make sure I have 

got this correct. You are talking about, today, a $1 billion industry, 

and——

Mr. ARMAGH. That is correct, Mr. Chairman. 

Chairman LEAHY.—in a very short time, a $5 billion industry. 

Mr. ARMAGH. In five years, it will be $5 to $7 billion. 

Chairman LEAHY. The reason I mention that, I would think one 

way to go after these people is to hit them very heavily in the pocketbook. Senator Hatch and I included a private cause of action allowing the victims of child pornography to sue producers in S. 

2520. It has got punitive damages on top of just damages, punitive 

damages, the idea that you get compensation to the victim, but you 

can also go deep into the pocketbooks of those doing it. 

Mr. Collins, the administration did not include such a provision 

in its proposal. Do you support the provision of the Hatch–Leahy 

bill? 

Mr. COLLINS. Yes, we do. We do support the inclusion of that. We 

do not have a monopoly on wisdom and we very much——

Chairman LEAHY. No, I just noticed it was not in your bill, so 

I just wanted to make sure. But you do support that? 

Mr. COLLINS. We do, and my written statement makes clear that 

we strongly endorse it, believe it should be part of the final package. 

Chairman LEAHY. Mr. Armagh, what do you think? 

Mr. ARMAGH. We absolutely support that clause, Mr. Chairman. 

Chairman LEAHY. I kind of thought you would. 

Professor Coughlin, you have looked at these crimes from the 

perspective of the victims. I know you share my dismay of what 

17

happens to these victims. What do you think of this kind of proposal? Is this something workable? 

Ms. COUGHLIN. The private cause of action? 

Chairman LEAHY. Going after the private cause of action, the punitive damages, and all that. 

Ms. COUGHLIN. The provision seems to me to be more than appropriate. It seems to be the kind of context that cries out for a private cause of action. As I mentioned in my written testimony, what 

you see here is a perpetrator, in effect, making a commodity out 

of a victim’s suffering and pain and it is the kind of case that 

seems perfectly designed for civil remedies. We have similar civil 

remedies available to other crime victims, and I see no reason why 

you would not want to extend it to this case, as well. 

Chairman LEAHY. Thank you. Also in the Hatch–Leahy bill, we 

have provisions protecting the identity of children. I had mentioned 

earlier, and I am sure Mr. Armagh had the same experience in his 

prosecution, prosecutor’s experience, one of the things you want to 

do is protect these children from being victimized a second time. 

Sometimes it is very difficult sometimes even to make the decision 

whether to prosecute because you have got to put the child through 

the whole thing all over again. 

The shield law that we have in the Hatch–Leahy bill, Mr. Collins, have you had a chance to look at that? 

Mr. COLLINS. Yes, I have. 

Chairman LEAHY. Does the Department support that? 

Mr. COLLINS. It raises a technical issue. There is a privacy protection provision already in the existing criminal code that would 

allow the names to be redacted. There is a practical concern that 

now that there is a heightened importance on proving that a child 

who is depicted is an actual child, that there may be circumstances 

in which that may be—there may be some necessity to some degree 

to go into identifying information, but that the existing provisions 

might be sufficient to allow any necessary redaction. 

We think it is important to look at whether that needs to be 

strengthened, but the per se approach of always shielding that category of information may raise some practical concerns, so——

Chairman LEAHY. Could I ask you to do this. Could I ask you to 

have your office look carefully at this and then submit for Senator 

Hatch and myself your specific reference to the Hatch–Leahy shield 

law, tell us what parts you agree with, what parts you do not agree 

with, where you think improvements might be made with some 

specificity? Could you do that, please? 

Mr. COLLINS. Yes. We would be happy to work with you on that. 

Chairman LEAHY. Thank you. Mr. Armagh, what about you? 

Have you had a chance to look at the shield law? 

Mr. ARMAGH. I have, Mr. Chairman, and I understand the concerns voiced in the legislation. I share Mr. Collins’s concern in 

terms of it is kind of a circular problem in that in order to prove 

the identity of victims at trial, we are going to have to set up these 

victim databases, if you will, which there is some question as under 

Title 18, 3509, if Federal agencies can even house that kind of information. And so as long as we can determine a way to fit that 

into that new problem under the virtual child pornography challenges via Ashcroft, I think it is an excellent idea. 

18

Chairman LEAHY. I think we all know what we want to do, but 

we also want to do it in a way that does not hinder law enforcement, helps law enforcement, protects the victim, keeps constitutional. Again, I would ask each of you on the shield law, if you 

have ideas, pass them on to us. I know that we are—some of these 

areas, with the Ashcroft v. Free Speech case, we are having to feel 

our way around, so help us out in any way you can. 

I know, Professor Schauer, you testified in 1996 that the specific 

provisions of the CPPA would be struck down. You were quite prescient. They were. You are absolutely right. You stated in your testimony you have similar concerns with respect to the House bill. 

I looked at the administration’s bill, and while I do not pretend 

to have the expertise you do, I thought it may be designed to address Justice O’Connor’s concerns, but she was not the deciding 

vote in this case. What areas of the administration bill cause you 

concern about the constitutional aspects and why? 

Mr. SCHAUER. I think there are primarily two. One is defining 

the crime of pandering in a way that is not keyed to existing post–

Free Speech Coalition definitions of child pornography or not keyed 

to obscenity. By going beyond that, it seems to butt directly against 

Justice Kennedy’s discussion of the pandering issue. Justice Kennedy made it clear that pandering could not, in the normal circumstances, be considered an independent crime but was only evidence of the crime of obscenity or child pornography. Once you 

keep pandering to an otherwise illegal act, you can support it 

under existing commercial speech doctrine, as I explain in my 

statements, but without doing that, it will suffer the same fate as 

the pandering provision of the CPPA. 

The other is that in 2256(8)(d), by not including the element of 

serious literary, artistic, political, or scientific value and by staying 

so far away from anything that looks like obscenity, the House bill, 

H.R. 4623, looks remarkably similar to what it was that the Supreme Court struck down. The differences are real, but they are 

not the differences that were important to Justice Kennedy and important to six of his colleagues. Even if you exclude Justice O’Connor, they are not the differences that were important to Justice 

Kennedy and five other of his colleagues, leaving six Justices to 

once again strike it down, once again delaying by as much as six 

years the ability to use the most effective tool we have to go after 

child pornographers. 

We do not effectively deal with child pornography when prosecutors are in appellate courts, when prosecutors are writing briefs 

and when prosecutors are doing something other than prosecuting 

cases under constitutionally impeccable or at least constitutionally 

plausible laws rather than having their attention, their time, and 

scarce prosecutorial resources diverted by legislation that may at 

times be more symbolic than real. 

Chairman LEAHY. It is the symbolic and real part that bothers 

me. I mean, we are all against child pornographers. We all want 

to protect children. But I am enough of a constitutional realist to 

know if we are going to do it, let us do it in a way that actually 

does protect them, not just something so we can say, hey, look, we 

are against them. I mean, I think we can accept the fact that all 

19

535 members of the House and Senate are against it, as is everybody in this room. Now let us do it in a way that works. 

Senator Hatch and I pointed out that there is a lower penalty for 

sexual predators who travel across State lines to have sex with a 

minor, the Traveler case, than for individuals convicted on child 

pornography charges. I think that to change that disparity, the bill 

encourages the Sentencing Commission to correct this, get these 

predators off the streets. 

Mr. Collins, would it be safe to assume that the Department of 

Justice would support us in that regard? 

Mr. COLLINS. Yes. We are actually studying that specific issue, 

that there really is a seemingly irrational disparity, that if you 

have one Federal jurisdictional predicate, there is one structure of 

penalties. If you have another for essentially the same conduct, 

there is a different structure. They should be evened across. Also, 

Senator Hatch’s child protection legislation also addresses that 

same issue. 

Chairman LEAHY. Can you let us know whether you support the 

provision we put in here to correct the disparity? 

Mr. COLLINS. In here, yes. The directive to the Sentencing Commission that is in Section 11, we did support that. 

Chairman LEAHY. That is what I wanted to make sure, and I assume, Mr. Armagh, you do, too. 

Mr. ARMAGH. Yes, Mr. Chairman. 

Chairman LEAHY. I have impinged on my friend from Utah’s 

time and I apologize, but I wanted to make sure we put down the 

fact that these provisions that the two of us have in here are supported. 

Senator HATCH. You covered it well, and I am very appreciative 

that the distinguished Senator from Vermont and I are working 

hand-in-hand together on these matters because I think we all 

want to do what is right here and we all want to solve these problems. 

Let me start with you, Professor Schauer. I have heard some 

argue that the PROTECT Act may chill legitimate speech protected 

by the First Amendment. A bit of history might help us to better 

frame this issue. From 1996 until the Supreme Court’s decision 

earlier this year, the Child Pornography Prevention Act, which 

swept far more broadly than the PROTECT Act does, was the law 

of the land and no one has pointed to any depletion in protected 

speech during that whole period of time. Indeed, as my distinguished colleague has said, movies like ‘‘Traffic’’ and ‘‘American 

Beauty’’ were produced and disseminated long after the CPPA was 

passed. 

So I find it somewhat ironic that the Supreme Court in Free 

Speech Coalition pointed to these movies as proof that the CPPA 

might deter the protection of such works. The Court also warned 

that the CPPA might criminalize performances of ‘‘Romeo and Juliet,’’ which as far as I have been able to obtain, those performances have continued unabated for the past six years. 

Moreover, several States, including Arizona, Delaware, Minnesota, and Missouri, have statutes that prohibit sexually explicit 

depictions of real or apparent minors. We should also remember 

that two major countries, Canada and England, likewise have 

20

amended their child pornography laws to ban such depictions of apparent minors. I have not seen any evidence to suggest that these 

laws have stymied free expression of ideas in those robust democratic societies. On the other hand, I find it difficult to stomach the 

fact that we provide less protection for kids in our country than received by the children of both England and Canada. 

Professor Schauer, what thoughts do you have on the issue of the 

PROTECT Act’s possible effect on chilling protected speech? 

Mr. SCHAUER. I think it would be extraordinarily unlikely. All 

too often, people who talk about a chilling effect do not spend 

enough time out in the cold with the thermometer, that often the 

discussion of chilling, as you suggest, is metaphorical or 

sloganeering without there being any actual evidence of chilling. 

Moreover, the existing definitions of obscenity and the existing 

definitions of child pornography, from Miller, from Ferber, from all 

of the other cases, already build in a very large, what is known in 

the field as a buffer zone. That is, they already take account of the 

chilling phenomenon and, therefore, as long as the requirements of 

Ferber, of Ashcroft, of Miller and all of these other cases are satisfied, that already builds in protection against chilling. The likelihood that there will be chilling from this Act seems to me somewhere between infinitesimal and nonexistent. 

Senator HATCH. I like that comment. 

[Laughter.] 

Senator HATCH. Let me ask you this, Mr. Collins. You have spent 

some time pointing out some of the technical errors that exist in 

the version of the PROTECT Act as introduced. Let me assure you 

that we have been working on correcting all of those typos and ambiguities. In fact, several months ago, my staff shared with you and 

with other persons in the Department of Justice a more polished 

version of the bill that addresses virtually all of the concerns, I 

think, you have raised in your testimony. 

Our bill, Senator Leahy and I have worked hard. This bill has 

evolved, as all bills do before final passage. The version that we intend to offer, or at least as I understand it, at the time the full Judiciary Committee considers S. 2520 will be even more polished in 

light of the thoughtful comments that you and others on this panel 

have provided for us. 

Now to my question. I think that I understand the legal impact 

that the Free Speech Coalition decision has on the Department of 

Justice’s ability to enforce the child pornography laws, but can you 

explain to the Committee what the practical effects of that decision 

have been? Absent any legislative action, do you see these problems 

becoming better or worse in the future? 

Mr. COLLINS. Senator Hatch, first, I would indicate the number 

of technical comments we made, most of them would apply to our 

bill, as well, and we had the benefit of that bill going through the 

process in the House and the markup and so, basically, I was just 

sharing in the written comments some of the technical things that 

we had learned in that process and appreciate the efforts that you 

have made on this. 

The practical impact of it is clearly considerable and it is not necessarily the case that it is in reduction of absolute numbers, because as the Chairman indicated, we are still quite aggressively 

21

pursuing these cases. But it is having an impact on certain classes 

of cases in particular and on the allocation of resources. 

First, any cases that involve computer images, digital images, 

present difficulties that we do not encounter in cases that involve 

older images on film or in which there is a sting operation where 

we may have more control over the nature of the material in question. In cases that call for expert testimony, which is a large number, the pool of experts who are available is not terribly large and 

the reports I have been given indicate that they have been deluged 

with requests for analysis, and they have to do a lengthy analysis 

even before the case can even be charged up in order to assess 

whether or not the case is viable. You have the prospect of the jury 

confusion with respect to a battle of experts analyzing things at a 

very technical level, threatening the basic ability to enforce the 

child pornography laws. 

And then you also have—I think Professor Coughlin’s comment 

was quite an insightful one. We have received reports that this 

issue is cropping up as a problem with scienter. We have had district judges who have expressed reluctance to accept guilty pleas on 

the basis that they do not think there is a sufficient showing of 

scienter that this person actually knew that it really was a child. 

We can expect fully that that kind of argument will also be exploited; in addition to the expert testimony over the underlying 

image, they’ll make the scienter argument, as well. 

So the current state of affairs is clearly one that is going to lead 

to increasing enforcement problems here. It is going to signal to 

pornographers that there are certain ways in which to carry on this 

trade that are harder for us to get at, and we can be sure that that 

is where that market is going to move. So inaction is unacceptable. 

We really do need to strengthen the tools that we have. 

Senator HATCH. Thank you. Let me turn to you, Mr. Armagh. We 

appreciate the testimony of all of you here today. It has been very 

helpful to me and, I am sure, to Senator Leahy and Senator Grassley, as well. 

But the National Center for Missing and Exploited Children recently published a newsletter indicating that it had received dozens 

of calls from prosecutors and law enforcement officials asking for 

the Center’s help in identifying the actual identity of children portrayed in confiscated pornography. Now, these law enforcement officials have told your organization that if you could not identify the 

children, they would drop their cases. 

I understand that it is extremely difficult, if not impossible, to 

determine the real identity of the children depicted in child pornography. Can you explain why that is and can you elaborate on what 

problems this causes in the real world of prosecutions? 

Mr. ARMAGH. Senator Hatch, there is hardly a week goes by that 

we do not get a call from prosecutors and law enforcement officers 

asking us if we can help them identify the victims that are visually 

depicted in their evidence, and part of that process is that there 

are a number of series of children who have been identified as victims and they are in databases at the National Center. We have 

cropped images. The U.S. Customs Service has these images. I believe the FBI does and perhaps the Postal Service. They bring 

those images to us, or crop those images and we try to make an 

22

identification and let them know where that child has been identified and kind of act as a pointer system so that they can go and 

get the necessary information that would be probative as to the 

fact that this is an actual child. 

What we are also seeing is known images of identified victims 

that have been manipulated or morphed. You have a Hispanic-looking child being sexually exploited. All of a sudden, his hair is blond 

and he has blue eyes and his features are changed a little bit, but 

the giraffe and the ugly green curtains are still in the background, 

and so we know that that is an actual child. But what this indicates is that they are getting more sophisticated. They are getting 

more thoughtful about manipulating these images, to the point 

where even identified children are going to be difficult to identify 

if they manipulate and change the image to the point where we 

cannot peel back the onion. 

One of the other problems that we are having, even if we get 

that kind of evidence to law enforcement, is under the Fyre or 

Dahlberg standards that require the admission of expert testimony, 

there has been some concern by judges, and they have thrown several cases out already, that there is not sufficient scientific knowledge in the scientific community in terms of analyzing these images that would allow an expert to get up and testify that, beyond 

a reasonable doubt, these are actual children. So you find it very 

difficult, unless you can actually identify these children through 

these victim databases, to have the case go forward. 

Senator HATCH. Thank you. Mr. Chairman, could I ask Professor 

Coughlin just one question? Professor, by creating an affirmative 

offense that allows anyone to escape prosecution by showing that 

the child pornography did not, in fact, involve real children, the 

PROTECT Act, we are attempting to strike a balance between the 

right of government to police child pornography and the right of 

the person to own pornography that the Supreme Court has 

deemed to be protected. 

Now, it is settled law that Congress can define the elements of 

an offense, or the offense, in this case, and much like other affirmative defenses that exist in law, such as insanity and self-defense, 

it is my belief that this provision places the burden of proof on the 

party that is in the best position to gather the pertinent facts. In 

other words, I think that the person who creates or receives child 

pornography is in a better position to ascertain whether or not the 

child depicted is real and to keep only those items that do not involve actual children, than a prosecutor who discovers these items 

at the end of the day and has no idea where they originally came 

from. 

Some might argue that this creates an unjustifiable restraint on 

the person’s right to possess child pornography, but doesn’t the government also have a right to bring successful prosecutions and 

don’t these competing rights need to be balanced in some way? 

Ms. COUGHLIN. Senator, my reading of the affirmative defense 

contained in the Senate bill suggests that it really does strike the 

right kind of a balance. I mean, clearly, we want to continue to protect the rights of criminal defendants to bring forward legitimate 

defenses, and I take it that the affirmative defense that you have 

currently proposed would do that in cases if no actual child was 

23

used and the material possesses some kind of literary, artistic, or 

political value. It would be exempt and it would be protected consistent with the First Amendment as interpreted in the Free 

Speech case. 

What you clearly do not want to do is to create a very broad loophole, and as the law currently stands, the loophole is there that allows defendants who are plainly in possession of illegal child pornography, graphic sexually explicit materials that are and should 

be illegal, to escape prosecution by claiming no one can prove the 

character of the materials. That seems to me to be a state of affairs 

that you can and should regulate, and, in fact, I think that the 

PROTECT Act does that and would do that in a way that both satisfies constitutional concerns, First Amendment concerns, Sixth 

Amendment concerns, and then also, as you say, puts the ultimate 

burden on the people who know how this material was produced. 

If there is any such information out there, you give them a last 

chance to come forward and show that they are innocent. 

Senator HATCH. Thank you. This panel has been very interesting 

and a good panel. I hope we get it right this time so that we can 

protect our children. 

I want to thank you, Mr. Chairman, once more for not only holding this hearing, but playing such a positive and affirmative role 

in helping us to get this done this year. I think we actually can, 

and I am hopeful in every way that we can and I am very appreciative of the administration for your earnest efforts in this regard, 

as well. 

Of course, the Center for Missing Children is one of my most favorite organizations in the country. We really appreciate what you 

have done and are doing every day. 

Mr. ARMAGH. Thank you, Senator. 

Senator HATCH. I wish we could solve these problems once and 

for all, but what we have got to do is the best we can do and we 

need to get this through this year. 

Thank you, Mr. Chairman. I appreciate it. 

Chairman LEAHY. Thank you. 

Senator Grassley? 

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Mr. Chairman, I am going to use my time to 

make a statement. I do not have any questions. I think you two 

have covered it very well. 

I want to start out by complimenting you as Senators and those 

of us that are cosponsoring this legislation because I think it is evidence that we see a responsibility and a very unique responsibility 

we have to pass legislation that will provide children with a safe 

and secure environment that is free from exploitation. 

Along this line, I think we ought to give the Bush administration 

commendation for the high profile that they are giving to child exploitation and their efforts to protect our nation’s greatest asset, 

because today, we are kicking off a White House Conference on 

Missing, Exploited, and Run Away Children. This conference, made 

up of experts and practitioners, will contribute much to both the 

Federal and State efforts to safeguard our children and they should 

24

be praised for their work to shut down the international pedophile 

rings that stalk and destroy our children. They are making the job 

of keeping our children safe a very top priority. 

I am glad to compliment Senators Hatch and Leahy for this bill 

and glad that I had an opportunity to join them in sponsorship because this is continuing a long history of this Committee’s efforts 

to eliminate the scourge of child pornography. Unfortunately, child 

pornographers have continually found ways to sidestep our legislation. 

In the Supreme Court case of Osborne v.Ohio, when that was 

first ruled, making or selling child pornography was not protected 

by the First Amendment, so Congress and many States then 

passed laws to prohibit these activities. As a result, child pornographers responded by going underground, forming clandestine networks to produce and trade in child pornography. 

Consequently, Congress enacted legislation criminalizing the 

simple possession of child pornography so that law enforcement 

could reach into the seamy underworld of American society and 

catch child pornographers and pedophiles. The Supreme Court 

upheld this ban on the possession of child pornography because 

they recognize the fluid nature of the business, production, distribution all connected with it. 

Additionally, commercial pornography distributors began selling 

videotapes of scantily-clad young people. These pornography merchants found what they believed was a loophole in the Federal 

child pornography laws, and for a time, the Clinton administration 

agreed, but many of my colleagues will remember the Knox case. 

Fortunately, Congress did intervene and the Clinton administration changed its position and the courts closed that loophole. 

Computer imaging technology gave child pornographers yet another way to sidestep Federal law by creating synthetic child pornography, which is virtually indistinguishable from traditional 

child pornography. Pedophiles have used these technological developments to transform images into child pornography. This Committee held a hearing on the subject in the mid–1990s and issued 

a report supporting the bill. We heard experts in sexual pathologies 

testify that pedophiles crave sexually explicit depictions of children. 

In other words, child pornographers reinforce deviant sexual impulses and can precipitate deviant illegal sexual behavior. Surely, 

synthetic child pornography which the viewers believe to be real 

can stimulate the same anti-social responses that traditional child 

pornography might. 

We also found that child pornography, whether real or computergenerated, is an intrinsic part of the molestation process. 

Pedophiles are using these morphed child pornography in commission of their crimes by enticing children into sexual activity and 

lowering natural inhibitions. 

Because of these and other compelling reasons, we passed the 

Child Pornography Prevention Act of 1996. Unfortunately, the Supreme Court decided that was unconstitutional. I do not agree with 

the Court’s determination, but their decisions are the law of the 

land, so we must move on. 

So now we are presented with another opportunity to solve the 

problem of synthetic child pornography and protect our children 

25

while being mindful of Supreme Court concerns. Today’s hearing is 

a vital step in the passing of that legislation and comporting with 

the First Amendment. 

I want to thank our witnesses who have been here to help us 

with this process because I think it is going to help improve prosecutors’ ability to go after pedophiles. I think our witnesses have 

shed some light on the constitutionality of the proposed legislation, 

and obviously, like Senator Hatch, I am glad to hear from the National Center for Missing and Exploited Children. 

I want to work with the two main sponsors of this bill to see if 

we can move this along yet this year. It is very important. Thank 

you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

I am told some Senators may have questions to be submitted for 

the record and they will be. As I have said, some of my earlier 

questions have asked for you to elaborate on them. 

As we do in these hearings, when you look back over your notes 

or look back over your answers, if you think of something else you 

want to add to it, please feel free to do that. This is to help guide 

the whole Senate and we are always happy to have that. 

With that, we will stand in recess. 

[Whereupon, at 11:35 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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