Statement Of Senator Patrick Leahy
Chairman, Senate Judiciary Committee
On S. 2520, The Prosecutorial Remedies And Tools Against
Exploitation Of Children Today (PROTECT) Act

 October 15, 2002

MR. LEAHY: Mr. President, I rise today to urge the Senate to pass S. 2520, the Prosecutorial Remedies and Tools Against the Exploitation of Children Today (“PROTECT”) Act of 2002.  This bill and the substitute I offer will protect our nation’s children from exploitation by those who produce and distribute child pornography, within the parameters of the First Amendment.  I was an original cosponsor of S. 2520 and joined Senator Hatch, the ranking Republican member of the Judiciary Committee, on the Senate floor when the bill was introduced.                                                             

Since that time, I have been working with Senator Hatch both to improve the bill that we introduced together and to build consensus for it.  Unlike the Administration’s bill, which has been widely criticized by constitutional and criminal law scholars and practitioners, we have been largely successful in that effort.  The substitute I offer today is virtually identical to the version circulated by Senator Hatch before the October 8, 2002 meeting of the Judiciary Committee.  I am glad to report that this substitute has been approved by every single Democratic Senator.  Moreover, every Democratic Senator has agreed to discharge S. 2520 from the Judiciary Committee for consideration and passage by the Senate, with a refining amendment.

I am now asking my colleagues on the Republican side of the aisle to lift any holds and to allow this important legislation to pass the Senate.  That way, the House may take up the bill and the PROTECT Act may become law before we adjourn.  I know that there are some who would rather play politics with this issue, but I hope that they reconsider.  It is more important that we unite to pass a bill that will both protect our nation’s children and produce convictions rather than tying up prosecutorial resources litigating the constitutionality of the tools we give the Justice Department to use.  This legislation will accomplish those goals.

Two weeks ago I convened a hearing on this issue to hear from the Justice Department, the National Center for Missing and Exploited Children (“CMEC”), and constitutional scholars.  The constitutional scholars testified that the provisions of S. 2520 were likely to withstand the inevitable court challenges ahead.  Unfortunately, they could not say the same of the Administration’s proposal and H.R. 4623.  Professor Frederick Schauer from Harvard, who served on the Meese Commission on pornography and authored its findings, as well as Professor Anne Coughlin from the University of Virginia both agreed that the Administration’s bill and H.R. 4623 crossed over the First Amendment line after the Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389.  Even the ACLU has passed along views from its First Amendment expert that S. 2520 is “well crafted and should survive constitutional scrutiny.”

That point is crucially important, because it does no one any good to pass a “quick fix” law that will land us right back where we started in five years – with no valid law on the books to protect our nation’s children from exploitation.  We owe our children more than a press conference on this issue, we owe them a law that lasts.

I am not alone in that view.  Testimony at the Judiciary Committee hearing made this point clearly.  Professor Schauer testified in support of the basic provisions of the PROTECT Act, but warned us about the Administration’s proposal.  Incidently, this same constitutional law scholar testified in favor of the Child Pornography Prevention Act (“CPPA”) in 1996, but he also correctly warned us then about the precise parts of that law that would be struck down.  Here is what he said this time around: 

[W]hether it is open to academic or congressional criticism, Justice Kennedy’s opinion for a 7-2 Court still represents the definitive and authoritative interpretation of the First Amendment in the child pornography context, and thus represents the law.  Legislation inconsistent with Free Speech Coalition would not only be inconsistent with current constitutional law, therefore, but would also represent a tactical mistake in an attempt to combat the horror of child pornography.  As the six year course of litigation under the previous Act so well demonstrates, constitutionally suspect legislation under existing Supreme Court interpretations of the First Amendment, whatever we may think of the wisdom and accuracy of those interpretations, puts the process of prosecuting the creators of child pornography on hold while the appellate courts proceed at their own slow pace.  There is room in our legislative world for legislation that is largely symbolic, but for Congress to enact symbolic but likely unconstitutional legislation would have the principal effect of postponing for conceivably six more years the ability to prosecute those creators of child pornography whose prosecution is consistent with the Supreme Court’s view of the First Amendment.

After our Judiciary Committee hearing, Senator Hatch and I continued to work to improve our bill to address concerns that had been raised.  We worked to come up with a Hatch-Leahy substitute amendment for consideration by the Judiciary Committee that included technical corrections and improvements to the original text of S.2520 that we could both agree upon.  These included addressing some issues raised by the National Center for Missing and Exploited Children (“CMEC”) concerning the scope of the victim shield provision to limit that provision to “non-physical” information. 

The changes in the proposed Hatch-Leahy substitute also included adopting the House bill’s measures allowing the CMEC to share information from its tip line directly with state and local law enforcement officers, instead of always passing the information through the FBI.  Although the Administration did not originally ask for this change, the CMEC has reported that the FBI is either unwilling or unable to share information from the child exploitation tip line in a timely manner with state and local law enforcement.  As the Chairman of the Committee charged with overseeing the FBI, I was disappointed to hear this appraisal of the FBI.  To remedy this situation, and in the spirit of compromise and reconciling this legislation with the House passed bill, the substitute to S.2520 incorporates this change. 

I note that Senator Hatch would not agree to accept my proposal that we also include a provision that would ensure that tips to the child exploitation tip lines come from “non governmental sources” so that government agents could not “tickle” the tip line to try to avoid the legal requirements of the Electronic Communications Privacy Act.  I did not insist on this important provision because, with time running out in this Congress, we must all compromise if we want to pass a bill, and I want to pass this bill.

In any event, I placed S. 2520 on the Judiciary Committee agenda for its meeting on October 8, 2002.  Unfortunately, due to procedural issues, including the two hour rule that was invoked because of the debate on Iraq, and procedural maneuvering that centered around judicial nominations, members from the other side of the aisle objected to the consideration of this and all other legislative proposals before the Judiciary Committee.  The Judiciary Committee was, consequently, unable to consider the bipartisan substitute circulated by Senator Hatch, and to which I agreed.

The substitute for which I now seek unanimous consent is identical to the proposed Committee substitute that Senator Hatch circulated with two exceptions. First, the substitute removes three lines that were not in the original language of S. 2520 as introduced by Senator Hatch and that were inadvertently included in the version of the substitute circulated by Senator Hatch. Indeed,  I am advised that Senator Hatch was prepared to strike these 3 lines had the Judiciary Committee considered the substitute.  The Leahy amendment simply corrects this inadvertent error, which was totally understandable in the rush of business.

The second change the substitute makes in order to assure swift passage of this measure is to render the new affirmative defense created in S. 2520 available to defendants who can prove that actual adults – and no children – were used to create the visual images involved.  This change would provide no help to defendants seeking to assert a “virtual porn” defense, which would still be blocked both for the new category of material created by the statute and any obscene child pornography.  But in the case of a defendant who can, for instance, actually produce in court the 25-year old that is shown in the allegedly obscene material and prove that it is not, in fact, child pornography, or even virtual child pornography, the defense would be available.  Indeed, Justice O’Connor in her concurring opinion in the Free Speech case specifically concluded that the prior law’s prohibition on such “youthful adult” pornography was overbroad.  As the testimony at our Committee hearing made clear, we should be careful not to repeat this mistake. 

Other than that, this substitute is the exactly same as the substitute circulated by Senator Hatch before the Judiciary Committee’s meeting on October 8, 2002.  The definitions of child pornography are the same; the new tools for prosecutors to catch and punish those who exploit children are the same; the new tools given to the Center for Missing and Exploited Children are the same.  This is, for all intent and purposes, the same as the Hatch-Leahy substitute.

This is a bipartisan compromise that will protect our children and honor the Constitution.  I urge members from the other side of the aisle to join us.  Do not to hold this bill hostage as part of some effort at political payback or a “tit for tat” strategy.  Let this bill pass the Senate and give law enforcement the tools they need to protect our children in the internet age.

Mr. President, I ask unanimous consent that my entire statement be placed in the record.

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