Level of scienter required for child pornography distributors: the Supreme Court's interpretation of "knowingly" in 18 U.S.C. 2252.

• Author: Egan, Christina
• Position: Supreme Court Review

1. INTRODUCTION

   In United States v. X-Citement Video, Inc.,(1) the United States Supreme Court held that [sections] 2252,(2) a statute criminalizing the distribution of child pornography, required the government to prove that a distributor had knowledge of the sexually explicit nature of the materials and the age of the performers.(3) The dissent disagreed with the majority's interpretation of the statute, arguing that the grammatical structure of the provision precluded reading the statute to require scienter.(4) Without a scienter requirement, a distributor would be held strictly liable for distribution of child pornography regardless of his knowledge of the contents of the materials he distributed. Justice Scalia found that the word "knowingly" only applied to the verbs in the statute and did not extend to the elements regarding the nature of the materials and the age of the performers.(5) He concluded that because the statute lacked a scienter requirement, it established a severe deterrent to constitutional activities and was not narrowly tailored to its purpose.(6)

   The defendant in X-Citement Video was charged with distributing pornographic video tapes depicting a minor engaged in sexually explicit conduct in violation of [sections] 2252.(7) He argued that the statute was unconstitutional on its face because it did not require scienter as to minority.(8) The United States Supreme Court reversed the ruling of the Ninth Circuit Court of Appeals agreeing with the defendant, holding that [sections] 2252 was constitutional because the word "knowingly" extended to both the sexually explicit nature of the materials and to the age of the performers.(9)

   This Note argues that the majority's approach was correct. The dissent's approach, which focuses solely on the plain meaning of the text of the statute, was wrong. Given the fact that the most natural grammatical reading of the statute would lead to absurd results, the majority deferred to legislative intent and canons of construction to discern a sensible interpretation. However, the majority's analysis was not entirely correct. The majority assumed that the statute required knowledge as the applicable level of scienter. It failed to evaluate alternative levels of scienter. The majority should have considered recklessness as an applicable scienter level. Interpreting the statute to require recklessness, rather than knowledge, would have lessened the prosecutorial burden, more significantly promulgating Congress' desire to eradicate the distribution of child pornography, while still staying within the boundaries of First Amendment jurisprudence.

2. BACKGROUND

   1. THE FIRST AMENDMENT AND PORNOGRAPHY

      The First Amendment does not protect all forms of speech absolutely. When determining the degree of protection to grant speech, courts weigh the value of the speech itself against the harm it causes.(10) In 1942, the Court considered the constitutional rights of those involved in pornography and held that obscene speech was excluded from the protection of the First Amendment.(11) The Court set forth the guidelines for determining what constituted obscenity in 1973 in Miller v. California.(12) Under Miller, obscene materials are works which: (1) "the average person, applying contemporary community standards" would find "taken as a whole, appeal to the prurient interest in sex"; (2) "portray sexual conduct in a patently offensive way"; (3) "taken as a whole do not have serious literary, artistic, political, or scientific value."(13) Thus, non-obscene pornography retains First Amendment protection. However, when Congress enacts statutes prohibiting speech which approaches protected First Amendment areas, the possibility of chilling protected expression arises.(14) A chilling effect occurs when individuals refrain from exercising the constitutionally protected right of speech for fear of prosecution.(15) Even though their speech is protected by the Constitution, speakers act as if it were illegal, unprotected speech. Therefore, the First Amendment does not permit onerous criminal sanctions to be imposed on the basis of strict liability where doing so would seriously chill protected speech.(16)

   2. LEGISLATIVE HISTORY OF THE ENACTMENT OF [sections] 2252

      Congress passed the Protection of Children Against Sexual Exploitation Act of 1977(17) (the 1977 Act) as a response to the growing national concern over child pornography. Section 2252 of the 1977 Act targeted the distributors and recipients of child pornography.(18) Congress considered several bills before passing the ultimate version of [sections] 2252.

      1. Senate Efforts to Regulate Child Pornography Distributors

         The earliest version of [sections] 2252 was initially introduced by Senator Roth.(19) Senator Roth believed that the initial Senate bill aimed at regulating child pornography, which was directed only at the producers of child pornography, had a serious shortcoming because it failed to include a strong provision against the distributors and sellers of child pornography.(20) Senator Roth stated that to eliminate abuse by producers, it was necessary for the bill to cover those who distribute and sell the producers' work.(21) Thus, he proposed an amendment-commonly referred to as the "Roth amendment"--covering distributors as well.(22)

         A discussion between Senator Roth and Senator Percy focused on the use of the word "knowingly" in the Roth amendment. Senator Percy asked:

         Would [the amendment as drafted] not mean that the distributor or

         seller must have either, first, actual knowledge that the materials do

         contain child pornographic depictions, or, second, circumstances must be

         such that he should have had such actual knowledge, and that the mere

         inadvertence or negligence would not alone been enough to render his

         actions unlawful?(23)

         Senator Roth responded:

         That is absolutely correct. This amendment, limited as it is by the

         phrase 'knowingly,' insures that only those sellers and distributors who

         are consciously and deliberately engaged in the marketing of child

         pornography and thereby are actively contributing to the maintenance of

         this form of child abuse are subject to prosecution under this

         amendment.(24)

         The Roth Amendment was passed seventy-three to thirteen.(25) The Senate bill with the Roth amendment language included was passed eighty-five to one(26)

      2. House Efforts to Regulate Child Pornography Distributors

         In the House, the initial attempt to regulate child pornography was H.R. 6693. Section 9 (a) of the bill was a provision aimed at attacking distributors of child pornography.(27) Some House members voiced two concerns about the constitutionality of the provision.(28) The first was the lack of an obscenity requirement.(29) However, other members questioned whether that was a valid concern; they believed that the amendment did not need an obscenity requirement to withstand a constitutionality test.(30)

         The second concern involved the word "knowingly" as used in [sections] 9(a).(31) House members supporting the amendment, however, clarified that the bill was intended to prosecute only those distributors and sellers who know that the material they are transporting is child pornography.(32) The House passed the bill by a vote of 375 to 12.(33)

         Later, the House considered a version of the bill passed by the Senate, but without the language of the Roth amendment covering distributors of child pornography.(34) Some House members argued for a motion to include the language of the Roth amendment, observing that without the Roth language, the bill accomplished little.(35) Other House members argued strongly against that motion because the Roth amendment lacked an obscenity requirement, noting that the Department of Justice opposed the language of the Roth amendment for that reason on constitutional grounds.(36) Despite the controversy, the motion to include the Roth amendment language passed by a vote of 358 to 54.(37)

      3. Legal Debate Surrounding the Proposed Legislation Regulating Child Pornography Distributors

         Several government bodies considered the proposed Senate and House bills regulating child pornography. In particular, these government bodies addressed two issues regarding the provisions pertaining to distributors: (1) the lack of an obscenity requirement and (2) the use of "knowingly."

         1. Lack of an obscenity requirement

            In reviewing provisions covering distributors of child pornography, the Department of Justice stated that the material targeted by laws aimed at producers and distributors would have to meet the obscenity test so that non-obscene materials protected by the First Amendment would remain unregulated.(38)

            Considering the lack of an obscenity requirement, the Committee on the Judiciary for the Senate distinguished between the treatment of producers and distributors, stating that it could not extend federal law to make illegal the sale and distribution of materials whose production involved the use of minors in sexually explicit conduct because of First Amendment considerations.(39) Thus, it proposed merely amending existing obscenity laws to provide for more severe penalties for the sale and distribution of obscene materials depicting children in sexually explicit conduct.(40)

         2. Use of "knowingly"

            The Department of Justice considered the use of the word "knowingly" in both the provision covering producers of child pornography and the provision covering distributors. It recommended that "knowingly" be stricken from the provision governing producers in order to prevent an interpretation that the government must prove that the defendant knew the child was a minor. The Department stated that the term "knowingly" was appropriate in the section covering distributors "to make it clear that the bill does not apply to common carriers or other innocent transporters who have no knowledge of the nature or character of the material involved."(41) However, the Department of Justice advised: "To...