A new anti-child porn bill - including a provision that puts the burden of proof on the child porn maker that the suspected image doesn't use an actual child - has passed unanimously in the Senate.
"Congress has long recognized that child pornography produces three distinct, disturbing and lasting harms to our children," said Senate Judiciary Committee chairman Orrin Hatch (R-Utah). "First, child pornography whets the appetites of pedophiles and prompts them to act out their perverse sexual fantasies on real children. Second, child pornography is a tool used by pedophiles to break down the inhibitions of children. Third, child pornography creates an immeasurable and indelible harm on the children who are abused to manufacture it.
"It goes without saying that we have a compelling interest in protecting our children from harm," continued Hatch, who co-sponsored the bill with Vermont Democrat Patrick Leahy. "The (bill) strikes a necessary balance between this goal and the First Amendment. There is no place for child pornography even in our free society."
The bill, which passed on an 84-0 vote, requires anyone charged in a child porn case to prove their material didn't depict real children. On the Senate floor, Hatch argued that arguing real children weren't used or depicted in making a child porn image was a "frivolous" argument springing from technological growth.
"Computer imaging technology," he argued, "has become so sophisticated that even experts often cannot say with absolute certainty that an image is real or a 'virtual' computer creation...The bill...creat(es) a new and powerful affirmative defense." He said the bill allows a suspect to have a full defense by showing and proving the image didn't use an actual child, which he said answers directly the Supreme Court's concerns in the Free Speech Coalition decision.
But Free Speech Coalition spokesman Bill Lyon said that's the one provision of the new bill that makes him nervous above all. "That's the most troublesome thing, the burden of proof," Lyon said. "It does put the burden on the accused to prove himself innocent, whereas this country has always believed one was innocent until the prosecution proved him guilty."
And Lyon fears that could add to the end-runs around the Constitution that he and other civil libertarians fear the government is indulging almost at will. "They're doing it in the name of this and the name of that, in the name of saving us from terrorism. And it all boils down to we don't have those rights anymore. If one guy's guilty until he's proven innocent, how long before others doing other things are?"
Last April's Supreme Court ruling held that banning adult images because the models or actors were youthful enough looking to be thought minor children would be unconstitutional. The FSC subsequently won another court ruling that ordered restitution to the FSC for its legal fees in bringing that case.
The new bill also bans selling or trading child porn, using child porn to lure minors to sex, and lets child porn victims sue for damages.
"I urge the Senate to pass this legislation, and I strongly urge the Republican leadership in the House of Representatives to take this second opportunity to pass this important legislation in the form that we send to them," Leahy said on the Senate floor, also calling for President Bush to support the bill without taking an opportunity to make "ideological statements" with changes that might give the bill Constitutional trouble, as the last one did.
" If we act in a bipartisan manner," Leahy urged his colleagues, "we can have a bill to the President that can begin working for America’s children in short order."
Leahy said the provision barring child porn from being used to lure kids into sexual activity or more child porn is "a new felony, which applies both to actual and virtual child pornography...This will provide prosecutors a potent new tool to put away those who prey upon children using such pornography whether (it) is virtual or not," including those predators who lurk in Internet chat rooms or forums.
Lyon said the bill mostly doesn't present "severe problems" for adult entertainment. "Since we don't produce any kind of child porn, this bill being much more narrow in its provisions and putting much more emphasis on the younger area in child porn, the prepubescent area, it really would have almost no effect of any kind on us," he said.
