Statement Of Senator Patrick Leahy,
Chairman, Senate Judiciary Committee,
On Introduction Of The Hatch-Leahy
Prosecutorial Remedies And Tools Against The Exploitation Of Children Today
("PROTECT") Act Of 2002
May 15, 2002

Today I join Senator Hatch in introducing the "PROTECT" Act of 2002. This bill is intended to protect our nation’s children from exploitation and protect our constitution at the same time.

In the Free Speech Coalition case, seven justices of the Supreme Court ruled that the definition of child pornography in the CPPA was overbroad and covered such non-obscene movies as Traffic, Romeo and Juliet, and American Beauty. No one intended that.

It also ruled that Congress could not broadly ban all "virtual child pornography," which may make prosecutors’ jobs very tough in the internet age.

The Court in Free Speech faced a difficult task – as do we here – applying the time-honored principles of the First Amendment to the computer age.

I join Senator Hatch today in introducing a bill carefully drawn to stick. As a former prosecutor, I am more interested in making real cases that protect children than making new first amendment law. There are many people who do not agree with the Supreme Court’s decision in Free Speech, but that will not erase it from the books. Everyone wants to protect our children, but we need to do it with cases and laws that don’t get tossed out in court.

It is tempting to rush to come up with a "quick fix," but we owe our children more than just a press conference on this matter. We owe them careful and thoughtful action.

My initial review of the Administration’s proposal, now working its way through the House, gives me serious concern. Already I have a letter from six constitutional experts – prominent practitioners and law professors alike – that expresses "grave concern" about the Department of Justice’s proposal from a first amendment perspective. I would like to put that statement in the Record. Indeed, the entire approach that the Administration has taken in this matter is to reach as far as possible, not to hedge its bets, and simply to throw down the gauntlet on the steps of the Supreme Court, daring it to strike down the law yet again. That will help no one.

In contrast, the bipartisan bill we introduce today is not an attempt to "get around" the Supreme Court’s decision, or to ignore that decision. Instead, Senator Hatch and I have come together to craft a bill that attempts to work within the limits set by the Supreme Court. At the same time, our bill contains tough enforcement tools which are not in the Administration’s bill.

For instance, it creates a new crime aimed at people who actually use child pornography, whether real or virtual, to entice children to do illegal acts. This crime carries a tough 15-year maximum prison sentence for a first offense.

Second, the bill requires the U.S. Sentencing Commission to address a disturbing disparity in the current Sentencing Guidelines.

The current sentences for a person who actually travels across state lines to have sex with a child are not as high as for producing child pornography. The Commission needs to correct this disparity immediately, so that prosecutors are able to deal just as effectively with dangerous sexual predators off the street as with child pornographers.

Third, this bill has several provisions designed to protect the children so that they are not victimized again in the criminal process. This bill provides for the first time ever a "shield law" that prohibits the name or other identifying information of the child victim from being admitted at any child pornography trial.

Next, this bill also provides a new private right of action for the victims of child pornography. This provision has teeth, including punitive damages that will put those who produce child pornography out of business. I commend Senator Hatch for including this provision. None of these new prosecutorial tools presents First Amendment issues. They are not going to result in Supreme Court arguments – all they will do it get bad guys in jail and protect children.

Other parts of the bill are closer to the First Amendment line, and I expect that the debate on the constitutional issues raised by this bill will be vigorous. That being said, this bill reflects a good faith attempt to protect children to the greatest extent possible while not crossing that line.

I look forward to the debate on these issues, and I do not pretend that I or any of us here have a monopoly on wisdom when it comes to such important constitutional questions.

For all of these reasons, I am pleased to introduce this legislation with Senator Hatch. I would ask consent to put my full introductory statement in the Record.

# # # # #