Striking a Blow for Federalism

The law is the Child Pornography Protection Act of 1996. The act makes it a federal crime to possess any pornographic photo of a child if the photo has been produced by "materials" that have been transported in interstate commerce. The noun is important.

The facts are not in dispute. Three years ago, Maxwell rented a room in St. Petersburg, Fla. His landlady, Alberta Wallace, suspected that he was engaged in homosexual activities on the Internet. She alerted the FBI. Armed with a warrant, agents seized 13 floppy disks filled with photos of naked teenage boys. A jury in U.S. District Court convicted Maxwell of knowingly possessing child pornography. The court sentenced him to 66 months in prison.


The case of Alvin Smith dates from March 2002 in Tampa. Armed with a search warrant, police found more than 1,700 "sexually explicit" photographs. Some of the photos depicted Smith having sex with "very, very young girls." Police found one of the girls at a shelter for runaway children. Her birth certificate indicated that she was 14 at the time the photo was taken in 1999. A jury convicted Smith under the same child pornography statute. The court sentenced him to 15 years in prison plus five years of supervised release.

Both cases wound up in the U.S. Court of Appeals for the 11th Circuit. Judge Gerald B. Tjoflat spoke for different panels in regretfully reversing the convictions. In their view, the only "commerce" involved in these cases was insignificant intrastate commerce. Last month the U.S. attorney general asked the Supreme Court to take the government's appeal.

Judge Tjoflat, a 30-year veteran on the federal bench, was in top form in dismantling the government's flimsy case. He agreed with prosecutors: Maxwell had indeed possessed child pornography in Florida. And, true, the porn had been saved on computer disks that had traveled from out-of-state before they contained illegal images. But so what? "The government proved nothing more."

The child pornography act relies wholly upon the Commerce Clause in Article I of the Constitution. The clause undoubtedly permits Congress to regulate some intrastate activity, "but only if that activity substantially affects interstate commerce." There must be some clear nexus. "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 — the only act for which Maxwell was charged — entails no transactions, no consumption of goods or services, and no necessary resort to the marketplace."

The statutory reference to "production materials," said Judge Tjoflat, "smacks of pretext." If Maxwell's conduct had any effect on interstate commerce, "that effect is attenuated to say the least." There is nothing inherently commercial or economic about mere possession of photographic images. In sum, the panel could find "no rational basis" for concluding that Maxwell's conduct had substantially affected interstate commerce. "It strains reason to conceive of how Maxwell's activity of possession was in any sense 'commerce.'"

In the companion case from Tampa, involving Alvin Smith, Judge Tjoflat iterated many of the points he had made in Maxwell. He added that "the conduct for which Smith was convicted is clearly punishable. The only problem is that it is not punishable federally."

"Our nation's founders were not naive about the risk of an all-encompassing central power, nor, it seems, did they ignore the possibility that the legislature might be tempted to overstep its bounds to legislate ideals favored by its constituencies. Federalism is no academic shibboleth. It is neither an inane legalism, nor an anachronous vestige of a bygone colonial era. The federalist system places a vital check on the power of the central government to trespass on our freedom ... (It) ensures a role for the governments of the states and affords the voting public a more resonant voice in the debate of many legislative issues of principally local concern.

"We decline today, with no small regret about the outcome in this case, to ignore that design ..."

Let me applaud. If this unreconstructed 10th Amendment states'-righter may have the last word, it's a cheer for Judge Gerald Tjoflat. Make that three cheers. And a tiger!

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

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