Regarding Child Pornography Extends the Supreme Court's Federalism Cases

The U.S. Court of Appeals for the Ninth Circuit is often criticized for not following and/or anticipating the direction of Supreme Court developments. As my brother, Akhil Reed Amar, and I have noted in prior columns, including this one, that is one explanation sometimes given for why the Ninth Circuit seems to get reversed more often than other federal appellate courts.

But a 2-1 Ninth Circuit decision handed down this spring demonstrates that - sometimes, at least - the Circuit is taking what the Supreme Court has said, and running with it.

Ironically enough, the case involves extending the Supreme Court's so-called "New Federalism" rulings. In this series of decisions, the high Court has cut back on the power that Congress enjoys to regulate the nation.

One would ordinarily not expect the Ninth Circuit - viewed by most observers as more liberal than other courts - to embrace and enlarge the limits the Supreme Court has placed on Congress. In addition, the recent decision was penned by famously liberal Judge Stephen Reinhardt, making the ruling perhaps all the more surprising. But it appears that federalism, like politics, often makes for strange bedfellows.

The Facts of the Ninth Circuit Case

The decision, United States v. McCoy, involves child pornography. One evening in April 2000, Rhonda McCoy, her husband Jonathan (a petty officer in the Navy), and their young daughter Kala were at home in San Diego in their Naval housing taking family photographs. Rhonda allegedly had consumed a large amount of alcohol. At one point, Rhonda and Kala, partially unclothed, posed side by side for the camera, with their genital areas exposed.

A few months later, Rhonda deposited the film for processing at the Naval Exchange. The Exchange notified federal criminal authorities of the existence of photographs that appeared to present a child in sexually suggestive poses.

Agents of the FBI and the San Diego Police Department then searched the McCoy home, under the authority of a federal search warrant, and seized many pictures, as well as a number of cameras.

The Indictment, and the Parties' Arguments

Ultimately, the federal government filed an indictment charging Rhonda with one count of violating a federal statute that makes it a federal crime "[to] knowingly possess[] 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any [sexually explicit] visual depiction [of a child] that has been . . . produced using materials which have been mailed or [] shipped or transported [in interstate or foreign commerce]. . . .

The camera and the film used to take the sexually explicit picture of Kala were manufactured in, and at some point sent from, a state other than California. Thus, Ms. McCoy's conduct fell within the statute. However, Ms. McCoy challenged the statute itself as unconstitutional, on the ground that it did not lie within federal power. In other words, she said that possession of child pornography is not, in and of itself, a problem that Congress can regulate. Rather, only the states can address the problem.

The Ninth Circuit panel agreed, voting 2-1 that Congress' law was unconstitutional because the Constitution does not authorize the federal government to regulate in this realm.

The Precedents Underlying the Ninth Circuit's Decision: The New Federalism

The main precedents for the Ninth Circuit's ruling were two Supreme Court decisions from the past decade. In them, the Court invalidated Congressional laws on the ground that Congress lacks authority to touch particular activities even under the broad powers the Constitution gives it to regulate "commerce among the several states."

The first case, United States v. Lopez, involved a challenge to the so-called "Gun-Free School Zones Act." The Act had made it a federal crime to possess a gun within a certain number of feet of any school. But the Supreme Court ruled that even though guns may affect schools and schools may affect the national economy, Congress did not have the power to prohibit guns near schools in the name of regulating interstate commerce. The main reason given by the Court was that possession of a gun near a school is not, simply put, inherently commercial activity, notwithstanding its effects on commercial activity.

The second case, handed down just a few years ago, was United States v. Morrison, which involved the so-called "Violence Against Women Act." Again, there, the court invalidated a federal statute as intruding into areas beyond Congress's Commerce Clause power.

In Morrison, the Supreme Court said that Congress does not have power, under the Commerce Clause, to create a federal tort remedy against individuals who commit violence based on the gender of their victims. The case involved a group of Virginia Tech football players who allegedly raped and assaulted a female student based in part on gender hostility. The Supreme Court said that no matter how reprehensible the alleged conduct, the area was one for the states, not for Congress.

Even though Congress had found that violence against women affects their productivity in the workplace, the Court said in Morrison that Congress could not invoke the Commerce Clause to regulate the violent behavior. The reasoning was similar to Lopez's: The Court concluded that gender-motivated violence, notwithstanding its economic effects, was simply not economic or commercial activity itself, and therefore Congress did not have a free hand to regulate it in the name of regulating commerce.

What Are the Limits of the New Federalism?

These two cases, Lopez and Morrison, are certainly watershed decisions by the Court. For about sixty years (from the New Deal until the mid-1990's), the Court had routinely upheld virtually every law Congress ever wanted to pass as being within Congress' authority to regulate the national economy. Lopez and Morrison - which are clearly just one part of a broader federalism theme developed by the Rehnquist Court - reflect a markedly different attitude .

But exactly how momentous are Lopez and Morrison, really? That question is open to debate, and the Ninth Circuit's McCoy decision illustrates why.

One big question concerns the Court's definition of what is "commercial activity." Under Lopez, possession of guns near schools is not. Under Morrison, gender-motivated violence is not. Now, according to the McCoy majority, possession of sexual images of one's own child is not - as long as the possessor did not intend to sell, exchange or transfer the images to anyone else, and did not have the intent to receive pornographic images from anyone else.

In dissent, Judge Steven Trott argued in McCoy that the activity targeted by the statute was indeed commercial - for the possession of child pornography more generally is commercial. He argued that the majority should not have evaluated the statute by reference to Ms. McCoy's conduct. Rather, it should have evaluated the statute as written - to cover all possession of child pornography, not just possession in circumstances like Ms. McCoy's.

On this point, I agree with Judge Trott. Otherwise, we would have to conclude that the Violence Against Women Act would have been upheld in Morrison had the assaulters in that case been paid money to conduct their assault. But I do not think that fact would have changed the Court's mind.

Judge Trott also argued that since possession of child pornography is ordinarily precisely the reason why pornography is produced in the first place - it is merely the last link in the whole commercial chain - Congress can regulate it under the Commerce Clause.

On this point, however, I disagree. If possession of a gun near a school is not commercial (as the Court said in Lopez), why is possession of a picture of a child in a sexual pose commercial? There are markets for both guns, and, tragically, for such pictures; if the gun market does not, in the Court's eyes, make the gun possession "commercial," why should the result be different for such pictures?

Granted, there is no distinct market for guns that will be used near schools, and there is a distinct market for child pornography. But a "distinct market" requirement would have strange consequences. It would mean that Congress would have the power to regulate possession of guns everywhere (because clearly there is a market for guns generally), but not the power to regulate the possession of guns in any specific place. And giving Congress the power to regulate all gun possession would hardly seem to be in keeping with the spirit of the New Federalism.

What about the connection to the camera market? After all, the McCoy statute does require interstate commerce in the materials used to make the photos. This distinction, too, is unpersuasive under the Court's precedents. If Congress could get around Lopez and Morrison by simply requiring the government to prove in each case that some aspect of the case involves something interstate, Lopez and Morrison would be pretty meaningless. Gun parts often travel interstate, too. Indeed, in today's interstate and international manufacturing world, almost all products derive from more than one state.

The War on Terrorism and the Federalism Cases

In the end, still-unresolved questions like these, about what the Supreme Court means when it talks of "commercial activity," are central to understanding the scope and limits of the New Federalism. This may be especially true as the war on terror is reflected in domestic federal legislation.

For example, suppose Congress passed a law making it a crime to possess anthrax near a city of more than 10.000 people. Would the Court say that mere possession is not commercial activity, the way it did in Lopez?

I do not know how the Court will answer questions like this, but I do know that that such questions are looming down the road. And the McCoy case provides a glimpse of the future in this regard.