In an attempt to exert control over the sexual practices of American citizens under the guise of protecting children, Rep. Mike Pence (R-Ind.) introduced bill H.R. 3726 this week, also called The Child Pornography Protection Act of 2005.
Among other provisions, the bill targets adult citizens who record visual images of consensual sexual activity in the privacy of their own homes, adds nudity and clothed images of pubic areas to the definition of “explicit sexual activity” as defined in U.S.C. 18 §2256, and criminalizes the production and distribution of R-rated mainstream motion pictures that fail to comply with the record creation and notice provisions of 2257, and possibly for violation of obscenity laws.
H.R. 3726 was introduced by Pence on Monday, and attached Wednesday afternoon to another bill, The Child Safety Act of 2005 (H.R. 3132), with the blessing of that bill’s co-sponsor, Rep. Sensenbrenner (R-Wis.), but without any debate on its merits. The Sensenbrenner bill was passed by the full House the same afternoon, with a vote of 371-52, and now moves to the Senate Judiciary Committee for consideration.
The stated intent of H.R. 3726 is to crack down on what Pence refers to as “home pornographers,” defined as people who create child pornography using their home computers. A close reading of the bill, however, reveals far more ambitious legislative objectives, including altering the federal labeling and record keeping law (U.S.C. 18 §2257) to include simulated, written and illustrated content, which directly implicates many if not most Hollywood films, expanding the reach of federal forfeiture laws to include 2257 violations and obscenity convictions, and enhancing administrative subpoena power to cover obscenity cases, making it easier for the government to compel a person to appearance or to obtain records in a legal proceeding without having to demonstrate probable cause before a judge.
Regarding any potential impact H.R. 3726 might have on The Free Speech Coalition et al v. Alberto Gonzales, the Free Speech Coalition’s current legal challenge to 2257, Board Chair Jeffrey Douglas said, “This action by the House of Representatives does not have any direct impact on the pending FSC lawsuit challenging 18 U.S.C. § 2257. If this horrific bill were to become law in its current form, it would change some of our arguments, indeed strengthening several. For the purposes of the awaited ruling on our preliminary injunction request, it should have no effect whatsoever.”
FSC attorneys and Legislative Affairs Director Kat Sunlove are preparing a complete analysis of H.R. 3726, which will be posted on our website as soon as it is completed.
