Pot and Porn and the Commerce Clause

The question in this case, as the government concedes, is not whether 22-year-old Matthews "made a videotape of himself as he engaged in consensual sexual activity with a 16-year-old girl." The question is much less salacious. It is whether Matthews used videotape that had traveled in interstate commerce before it came to rest in Albertville, Ala.

The facts are neither important nor novel. The trial court explained: Matthews introduced himself to the young woman through a chat room. Then, through "computer-generated blandishments" and telephone conversations, they agreed to meet in her home at 2 o'clock on a summer morning. While her parents slept, they copulated on camera in the living room. Such a cinematic assignation was surely imprudent, but at the time it was not unlawful in Alabama.


In any event, the couple met and had their consensual romp. Word spread. Cops came. A federal grand jury indicted Matthews for possession of child pornography under 18 U.S.C. 2251. Before the case could go to trial, Matthews moved successfully for dismissal. U.S. District Judge C. Lynwood Smith ruled that the statute is unconstitutional as applied to simple intrastate production and possession of child pornography. In the case at hand, the lascivious images "were not mailed, shipped or transported by computer, nor intended for interstate distribution or economic activity of any kind."

The federal law at stake is the Protection of Children Against Sexual Exploitation Act of 1977. It punishes anyone who entices a minor to engage in filming sexually explicit conduct, but there's a hook. The moviemaker must know or have reason to know that the film "will be transported in interstate or foreign commerce." There must be an element of sale or "distribution for sale." Without proof of such an element, the government cannot make a constitutional case. Here there was no commercial element at all — or at least there was no such element beyond Matthews' use of a camera that once had traveled in interstate commerce. Judge Smith found the nexus insufficient.

The court did not wish to be misunderstood: "The exploitation of a minor in home-produced video recordings of sexual acts is, unquestionably, despicable; but when it is done with no intention to sell, distribute or exchange the tapes thus produced it is not 'commerce.'"

A three-judge panel of the 11th Circuit affirmed Smith's order. In a brief opinion the panel cited the similar case of U.S. v. James Maxwell a year ago — same circuit, same statutes, same ruling. Here the evidence involved a loner in St. Petersburg, Fla., who kept in his rented room computer disks containing several hundred photos of naked boys. His landlady tipped off the feds. Indicted under the same statute invoked in the Matthews case, he was first found guilty and sentenced to 5 1/2 years in prison. On appeal the conviction was set aside.

Speaking for a three-judge panel, veteran Judge Gerald B. Tjoflat relied upon the same reasoning invoked by Judge Smith in the Matthews case. There simply was no peg of substantive commerce on which to hang the prosecution. The tenuous charge against Maxwell was that the disks and the film used in making the photos at some time had moved in interstate commerce. Judge Tjoflat was not impressed.

"We discern nothing commercial or economic about the possession of child pornography, even if that pornography is saved on computer disks that were imported from out of state. The act of possession alone entails no transactions, no consumption of goods or services, and no necessary resort to the marketplace."

In its brief before the Supreme Court in the pending Matthews case, the government argues that the 11th Circuit's opinions "seriously undermine Congress' comprehensive scheme to eliminate the interstate market in child pornography." The solicitor general would tie possession and production of pornography for personal use to possession and production of marijuana for personal use. On June 7, a divided Supreme Court ruled, unconvincingly, that federal bans on non-commercial marijuana are valid.

Is there a constitutional difference between homegrown pot and homegrown porn? Judge Tjoflat made the right call: no "commerce," no crime.



(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

COPYRIGHT 2005 UNIVERSAL PRESS SYNDICATE
This feature may not be reproduced or distributed electronically, in print or otherwise without the written permission of uclick and Universal Press Syndicate.