Your Fifth or Your Job?
The company we keep

Eleventh Circuit Tells Congress it can't Outlaw In-State Child Pornography

Yesterday a unanimous three-judge panel of the Eleventh Circuit held that Congress could not make it a federal crime to possess child pornography that never traveled across state lines.  United States v. Maxwell, No. 03-14326, (11th Cir., Oct. 1, 2004).

After Alberta Wallace became suspicious that he roommate, James Maxwell, was using her computer to look at child pornography, she called the police.  She then allowed FBI agents to search her Florida apartment. 

During the search, the FBI made a copy of Wallace's hard drive and seized several disks. One of those disks contained hundreds of pornographic images of children.  After the search, Wallace found another disk in her apartment: It contained 15 images of child pornography.

A grand jury indicted James Maxwell on two counts of possessing child pornography, in violation of 18 U.S.C. §2252A(a)(5)(B).

Although special agents knew that one young boy featured in a picture was from Texas, the agents could not determine where the picture was taken.  Indeed, there was no evidence that any of the pictures were taken outside of Florida.

However, the trial court agreed with the prosecution that since the disks traveled to Florida from another state, Maxwell could stand trial. Maxwell was convicted on both counts.  A unanimous three-judge panel of the Eleventh Circuit Court of Appeals reversed.

The prosecutor's evidence established that "[a]part from the origin of the disks (before they had been committed to nefarious purposes), Maxwell’s case involved no apparent connection to activity beyond Florida."  Id. at *24.

The panel found that Maxwell's conduct did not fall within any of the three areas the Supreme Court has found that Congress has jurisdiction.

In United States v. Lopez, 514 U.S. 549, 558-559 (1995) the Court found that the Commerce Clause confers upon Congress power to regulate “three broad categories of activity," namely:

·    “the use of the channels of interstate commerce”;
·    “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and
·    “those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”   

In United States v. Morrison, 529 U.S. 598, 610-12 (2000), the Court clarified the substantial relationship element, finding that to determine whether wholly intrastate activity substantially affects interstate commerce, four factors are relevant:

·    whether the statute in question regulates commerce “or any sort of economic enterprise”;
·    whether the statute contains any “express jurisdictional element which might limit its reach to a discrete set” of cases;
·    whether the statute or its legislative history contains “express congressional findings” that the regulated activity affects interstate commerce;
·    whether the link between the regulated activity and a substantial effect on interstate commerce is “attenuated.”

The panel wrote that: "Stated bluntly, wholly intrastate activities that have a only minimal or insubstantial effect on interstate commerce are not proper subjects for federal regulation, at least not through the power bestowed by the Commerce Clause."  Slip op. at 26-27.  Further:

In this case, the challenged statute does not govern the channels of interstate commerce, and the Government did not establish that the proscribed images were things in interstate commerce. Rather the Government has prosecuted Maxwell for intrastate possession of child pornography and relies entirely for its convictions on the fact that the disks on which the pornography was copied traveled in interstate commerce before they contained the images.

Id. at *27.

The statute would have been constitutional in its application to Maxwell if “a rational basis existed for concluding that” the intrastate possession of child pornography produced with materials that traveled in interstate commerce “sufficiently affected interstate commerce.”  Id. at *29 (citing Lopez, 514 U.S. at 557).  But, the panel held, because Maxwell's conduct involved non-economic activity, aggregation was not proper. Id. at *37.  (""We believe this aggregate approach cannot be applied to intrastate criminal activity of a noneconomic nature.")

Distinguishing Maxwell's conduct from Farmer Wickard's, the panel wrote: "The regulation at issue in Maxwell’s case, by contrast, has no clear economic purpose. It makes no effort to control national trade by regulating intrastate activity. Instead, it attempts to regulate primary conduct directly, even within state borders. Unlike wheat, pornography is a nonrival good."  Id. at *31.  " In any event, Congress is clearly not concerned with the supply of child pornography for the purpose of avoiding surpluses and shortages or for the purpose of stimulating its trade at increased prices."  Id. at *31. 

Thus, mere possession could not substantially affect interest commerce and therefore was beyond the reach of Congress.