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

Mike

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

United States v. Maxwell, No. 03-14326, (11th Cir. Oct. 1, 2004)

On October 1, 2004, the Eleventh Circuit Court of Appeals held that Congress could not make it a federal crime to possess child pornography that never traveled across state lines.

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. 

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 (Edmondson, C.J., Tjoflat and Cox, J.J.) of the Eleventh Circuit Court of Appeals reversed.

As an initial matter, Judge Tjoflat noted that the prosecutor's evidence merely established that "Apart 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.  In other words, the prosecution never established what connection the pornographic pictures had with interstate commerce.

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.”

The court quickly found the first two categories inapplicable to Maxwell's conduct:

Thus, Congress could have the power to criminalize Maxwell's conduct only through the third category of interstate commerce authority.

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."  Maxwell, at *26-27.  However, the panel would only apply a rational basis level of review to the challenged law.  Id. at 29.  ("The statute is is 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 ommerce sufficiently affect[s] interstate commerce.”)(citing Lopez, 514 U.S. at 557)(quotation marks omitted).

The panel found that "The act of possession alone—the only act for which Maxwell was charged—entails no transactions, no consumption of goods or services, and no necessary resort to the marketplace."  Distinguishing Maxwell's conduct from the farmer in Wickard v. Filburn, 317 US 111 (1942), the Judge Tjoflat 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.  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. 

Maxwell, at 31.
As such, the "aggregate approach cannot be applied to intrastate criminal activity of a noneconomic nature."  Id at 36.

The panel also disposed of the Morrison's other means by which Congress may regulate conduct having a substantial affect on interestate commerce:

In sum, our analysis of Morrison’s four considerations reveals no rational basis for concluding that the conduct for which Maxwell was convicted substantially affects or affected interstate commerce. Maxwell’s activity was noneconomic and noncommercial in nature; its connection to interstate commerce was tenuous at best. Section 2252A’s jurisdictional element requiring the government to establish that the illegal images were produced by materials that were transported in interstate commerce by no means ensures that the statute will be enforced only with regard to activity that has a substantial impact on interstate commerce. Lastly, the statute’s legislative history provides no meaningful evidence that the intrastate possession of child pornography at issue in this case, although produced with two disks that traveled in interstate commerce, substantially affects interstate commerce. Consequently, § 2252A’s application to Maxwell’s conduct cannot be sustained as a valid exercise of Commerce Clause authority.  Id. at 54-55.