Wednesday, October 01, 2014

Constitutional challenges to SORNA, child pornography statutes rejected

U.S. v. Brune, 2014 WL 4654572 (9/19/14) (Kan.) (Published) - For those of you who have been holding off on trying your SORNA or child porn cases in hopes that the 10th would find the relevant statutes unconstitutional, you might have to go to Plan B.

(1) It is proper pursuant to the Necessary and Proper Clause to apply SORNA to someone convicted of a federal sex offense who finishes serving his sentence, including his supervised release term, and then fails to update his registration . There's no need for any interstate connection. The 10th says U.S. v. Kebodeaux, 133 S. Ct. 2496 (2013), which upheld sex registration requirements on someone convicted of a military sex offense, requires this result. When Mr. Brune was convicted in 2001 he was subject to the Wetterling Act sex registration requirements and then he was subject to the SORNA registration requirements when that Act came into effect in 2006. Because of those requirements he was never unconditionally released from federal oversight. First, the child porn statute Mr. Brune was convicted of violating in 2001 was a valid exercise of the Commerce Clause to regulate interstate trafficking of child porn. Second, SORNA's registration requirements are a limited and rational extension of congressional power, as permitted by the Necessary and Proper Clause.

(2) 18 U.S.C. § 2252A(a)(5)(B), which prohibits possessing, or accessing with intent to view, materials containing child porn images, is not facially unconstitutionally overbroad. The 10th concedes an imprecise law that criminalizes access to Lolita or Woody Allen's Manhattan would be unconstitutional. But here Mr. Brune did not show any impermissible applications of § 2252A(a)(5)(B) would be substantial in comparison to the unprotected criminal speech, which is child porn. Mr. Brune contended the provision could reach protected speech because it doesn't require that the defendant specifically intend to view a child porn image, only the material containing the child porn. The 10th didn't think Mr. Brune came up with any examples of constitutionally valuable speech that would be punishable under the provision. Mr. Brune also contended the phrase "any other material" was expansive enough to sweep in broad categories of media protected by the First Amendment to the point that just looking at the internet would be a violation because the viewer knows it contains child porn somewhere in there. The 10th indicates this would raise a constitutional issue, but the 10th interpreted "any other material" in light of the words preceding it under the ejusdem generis principle---the broad word should have a meaning no more expansive than the more definite words accompanying it, in this case: "book, magazine, periodical, film, videotape and computer disk." So "material" only refers to "concrete forms of media that are used to capture, store, or deliver information as a means of communication"---"tangible illustrations of media, not mediums themselves." So "material" doesn't mean the internet. Once the internet is excluded from the definition, the inclusion of any other possible material wouldn't create a realistic danger of chilling protected speech. That downloadable images on the internet are automatically stored in a computer cache without the computer user necessarily knowing that doesn't raise a problem, the 10th says. The government still must prove the defendant knowingly accessed the particular URL. Without a pattern of child-porn-related searches immediately preceding the creation of the images it would be hard for the government to prove its case. Plus the statute requires the offender to know the material contains child porn.

Judge Phillips concurs in part and in the judgment. He sees no need for the 10th to go through the folderal of a constitutional analysis of the child porn statute. He believes § 2252A(a)(5)(B) requires the defendant to intend to view the child porn itself, not just the material containing the child porn. Without deciding the issue, the majority indicated the statute's language might not require such an intent. Judge Phillips relies on the legislative history for his interpretation. His interpretation eliminates the constitutional problem. Intentionally viewing child porn is not entitled to First Amendment protection.