Does Congress have power under the Commerce Clause to criminalize home-made child pornography? In this post I noted the circuit split. The split just got wider. In United States v. Riccardi, the Tenth Circuit rejected a Commerce Clause-based challenge to the application of the federal child pornography law to the intrastate production of child pornography.
UPDATE: It seems that the decision is narrower than I first reported:
As shown by the evidence at trial, Mr. Riccardi’s activities have a direct and significant interstate component: namely, he transported his photographic subjects, teenage boys, across state laws for the purpose of producing pornography and engaging in other illicit sexual activities. Moreover, his activities had an economic component not found in Maxwell, McCoy, or Corp: he paid the boys to pose for the photographs.
It may also be significant that, in contrast to McCoy and Corp, Mr. Riccardi possessed large numbers of photographs, which might well be the objects of commerce (even if they were not) and which could stimulate a commercially significant demand for more.
Slip op. at 31-32.
Judge McConnell further wrote:
It is not necessary for this Court to consider the constitutionality of the statute as applied to cases with more attenuated connections to interstate commerce, such as those in Maxwell, McCoy, and Corp, and we express no opinion regarding the results in those cases.
Id. at 34.
(Via Howard.)
