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7th Circuit Upholds Federal Child Porn Law

Panel denies convicted felon's appeal, possession 'loophole'

7th Circuit Upholds Federal Child Porn Law
MILWAUKEE - A three-judge panel of the Seventh Circuit Court of Appeals yesterday denied the appeal of Gregory Blum, who'd been convicted in U.S. District Court on federal charges of manufacturing child pornography - namely a videotape that included segments of Blum abusing a 3-year-old girl, with Blum admitting to having abused a total of three girls between the ages of 3 and 5 during the summer of 2006.

Blum's argument was that he had manufactured the tape at his own home in Wisconsin, for his personal use, and except for the fact that the videotape itself had been manufactured outside the state, there was nothing to tie his actions to interstate commerce, and therefore the federal government had no basis to try him for the crime.

However, Judge Ilana Rovner, writing for the unanimous panel, noted that her Circuit had already upheld a similar Commerce Clause challenge, U.S. v. Angle, in 2000, relating to possession of child porn, on the basis that the feds could target intrastate possession because it was "necessary to close a loophole that was undermining its ability to regulate interstate child pornography," Judge Rovner wrote. "That reasoning is equally applicable to the intrastate production of child pornography."

Moreover, the Court cited the U.S. Supreme Court's ruling in Gonzales v. Raich, which criminalized the intrastate growing and possession of marijuana, accepting the government's argument that Blum's "commerce" in (manufacture of) child porn even for his personal use was "part of an economic 'class of activities' that have a substantial effect on interstate commerce." Judge Rovner's opinion, however, emphasized that the quantity of the prohibited substance, whether marijuana or videotape, had little bearing on the illegality of its possession or manufacture.

"Moreover, the [Supreme] Court made it clear that the substantiality of an individual's own activities was not the relevant focus," Judge Rovner said of Raich. "Instead, the Court emphasized its earlier holdings that the de minimis character of an individual's actions under a statute is of no consequence because the proper focus is on the individual's contribution taken together with that of many others similarly situated. Nor was it dispositive that the marijuana growers were not engaged in commercial activity, but were merely growing it for their own, medically-approved use... Accordingly, it was not dispositive that the quantity of marijuana grown by an individual was not significant, nor that it was not being sold. Instead, the Court considered whether the regulation of the intrastate production and possession of marijuana was necessary to effectively regulate the interstate market."

When the Raich decision came down in 2005, it seemed clear that it would one day be applied to sexually explicit adult content, especially after Congress passed the Adam Walsh Act and included within it a section making it a crime to produce obscene material. We also covered the application of Raich in the Eleventh Circuit's decision in the Justin Evans case, where Evans' pimping, though done entirely within the state of Florida, was held to violate federal statutes because some of Evans' prostitutes' clients stayed at hotels, which were engaged in interstate commerce, and because Evans himself used cell phones, which were deemed to be "instrumentalities of interstate commerce."

Indeed, the Blum decision compares Raich and its relationship to the Controlled Substances Act with U.S. v. Maxwell, another child porn case challenged under the Commerce Clause, and its relation to the Child Pornography Prevention Act, noting that "Congress in enacting the [CPPA] statute recognized the danger posed by any child pornography regardless of origin, noting in essence that child pornography begets more child pornography, and therefore supporting the conclusion that the failure to regulate that class of activity would undermine the regulation of the interstate market in child pornography... As was the case in Raich, the high demand for child pornography in the interstate market presented the real danger that purely intrastate child pornography would find its way to that market."

And so now we have the Blum case adding to the increasing trend of the federal courts to prosecute some intrastate activities - marijuana and child porn production, and possibly production of adult porn - which have little or no interstate component. It's a situation that bears close watching.
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Mark Kernes

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