Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I rise in opposition to H.R. 1104. I would like to be able to support the AMBER Alert part of the bill, but that bipartisan, noncontroversial part of the bill has been…
Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I rise in opposition to H.R. 1104. I would like to be able to support the AMBER Alert part of the bill, but that bipartisan, noncontroversial part of the bill has been buried behind literally a host of controversial sound-bite-based provisions which have passed the House several times, only to die in the Senate.
The AMBER Alert portion of the bill would codify a program of grants and assistance to States and localities to establish a nationwide system of communications and alerts to assist in locating and returning missing and abducted children. The system has proven itself on the State level and would help save lives and additional heartache on a national basis.
The AMBER Alert bill has already passed the Senate unanimously and could pass unanimously in the House, I believe, absent the controversial sound bites that have been tacked on.
Last Congress, many of us warned the majority that coupling the AMBER Alert bill with controversial sound bites would mean that neither the AMBER Alert nor the sound bites would be passed, but the House passed the same kind of omnibus bill anyway; and, as expected, the whole thing died in the Senate. Yet, here we are again facing the same misguided strategy and this time again with even more reasons for the Senate to reject the bill which the AMBER Alert bill is buried in. Again, we have to protest the strategy that will again defeat the AMBER Alert system and again defeat the sound bites as well.
Mr. Chairman, I think the Senate has chosen not to consider many of the controversial items hitchhiking on the AMBER Alert bill for good reasons: more death penalties, at a time when we know the death penalty has problems; more mandatory minimums, two strikes and you are out. We are authorizing FBI wiretaps for behavior that is not even a crime; pretrial detention, lifetime supervision, and removing the statute of limitations on crimes such as adults crossing State lines to engage in consensual sex that would be a crime in the home State. I would just remind Members that any kind of sex outside of marriage is a crime in Virginia.
Virtually all of the crimes described in the bill are already crimes with significant penalties. Others have already passed the House in separate bills and are still pending in the Senate, as they have been for the last 6 years.
It is wrong to hijack the AMBER Alert bill to try to pass these things again. It will not help AMBER Alert, and it will not help pass the extraneous provisions.
It is true that the President has not waited for Congress to pass an AMBER Alert bill and has, by executive order, implemented many of the provisions of the bill. But the passage of AMBER Alert is still necessary to make the program permanent and to increase the funding of the program.
Mr. Chairman, we have letters from the National Association of Police Organizations, and I will just read two paragraphs from it:
``On behalf of the National Association of Police Organizations, representing 230,000 rank and file police officers from across the United States, I would applaud your valiant efforts in calling for an immediate passage of stand-alone AMBER Alert legislation. The recent successful recovery of Elizabeth Smart exemplifies the power of an informed public.
``In this light, legislation that will greatly enhance recovery abilities should not be tied down with additional controversial provisions and political wrangling. The Senate quickly passed S. 221 92 to nothing. Like other child abduction bills, H.R. 412 and S. 121 enjoy broad bipartisan support.''
We have other letters asking for passage of a stand-alone AMBER Alert bill from the Edward, Lois and Elizabeth Smart family and from the Polly Klaas Foundation. I would ask that we defeat the bill and take up H.R. 412, the stand-alone AMBER Alert bill.
Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, I yield 6 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).
(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)
Mr. Chairman, could the Chair advise us as to the amount of time remaining on both sides?
Mr. Chairman, I yield 5 minutes to the gentleman from North Carolina (Mr. Watt).
Mr. Chairman, I ask unanimous consent to yield the balance of my time to the gentleman from Illinois (Mr. Davis) for purposes of control.
Yes, Mr. Chairman.
Mr. Chairman, I yield myself such time as I may consume.
This is one of the reasons why it is difficult to consider legislation on the floor that had not been considered by committee. Reading the legislation, it appears that they have defined things that are obscene and, if that is the case, the whole site can be busted for obscenity. If it is not obscene, I am not sure that the amendment even applies. Adding ``misleading'' will just add complications to the prosecution because if we can prosecute for the obscenity, we do not have to get into the question of whether the title was misleading or not. We have constitutional implications with this because ``misleading'' may apply to adults as well as children.
There have been no hearings on this to my knowledge and certainly no committee consideration of this. I would point out that if the exemption on the bill, if we have a sexual implication in the name of the Web site, that might cause as many problems as it does solutions because it would make it easier to find the pornographic and obscene sites.
The AMBER alert bill ought to be passed by itself. We ought not be complicated with amendments such as this that have not been considered on the floor. So I would hope we would defeat the amendment, take the AMBER alert portion of the bill by itself so that that could be passed and considered, and deal with this kind of a measure in committee where we can deliberate and get all the fact and implications.
Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, I yield myself such time as I may consume.
In closing, I would like to say that this bill has significant constitutional implications. I include for the Record a letter from Artist Empowerment Coalition in opposition to the amendment.
Artist Empowerment Coalition,
New York, NY, March 26, 2003.
Honorable Member,
House Committee on Judiciary,
Washington, DC.
Dear Member: The Artist Empowerment Coalition (AEC)
strongly opposes the language in Section 108 of the Amber
Bill, which refers to MISLEADING DOMAIN NAMES ON THE
INTERNET. The AEC represents a nationwide coalition of
artists, songwriters, producers and industry executives. On
behalf of the coalition, we ask that you oppose this
amendment and prevent its inclusion in the legislation. The
impact of its passage would be much broader and more harmful
than the intent in our view, for the following reasons:
1. It is the artists' 1st Amendment right to express
themselves creatively on the web or otherwise.
2. Recording artists of all genres have website domain
names, which vary in origin and may reflect simply their
names, titles, who they are and/or what they represent
musically.
3. In some instances, an artists website content can
include language and lyrics which are part of their overall
body of work.
4. The content of the website and their creative expression
is not and cannot always be reflected within the domain name.
5. Under Section 108 of this proposed amendment, content of
an artists' website, judged subjectively, may be deemed
``obscene'' and therefore, based upon absence of labeling to
that effect, exposes an artist to punishment under the law
which can include, but is not limited to imprisonment.
6. The domain name selection, and its use on the part of an
artist, is not, in this case, ``knowingly misleading,''
rather it is selected based upon an artists rights under the
1st Amendment of the Constitution.
Further, the AEC believes artists should have the right to
use domain names, which are not subject to ``labeling'' and
third party interpretations. We believe it is wrong to imply
that an artist intends to ``knowingly deceive'' a person or
persons simply by using his or her name, for instance, as the
domain name rather than a description of the website
contents.
While the AEC supports efforts to protect children from
kidnapping and efforts to apprehend criminals, we oppose this
and any measure, which wrongly makes criminals of the
creative community, hinders the creative process and violates
creative rights under the law. Please vote ``NO'' on this
bill as amended.
Sincerely,
Tracey Walker,
Director of Public Affairs.
Mr. Chairman, I yield back the balance of my time.
Mr. Chairman, I claim the time in opposition.
Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this amendment would have the effect of turning the sentencing guidelines into mandatory sentences in the cases it affects. We have not had hearings or markups on this matter; and this is not the way we should amend the sentencing guidelines, without thought or consideration.
The purpose of the sentencing guidelines is to provide intelligent consistency in sentencing, considering each sentence within the overall framework of other sentences, and ensuring that more serious crimes get more serious punishment. That is impossible when you just take one crime at a time outside of that context with a floor amendment such as this.
The fact is, it makes no sense to have people with different degrees of criminality getting equal sentences or people with equal degrees of criminality getting vastly different sentences.
The evidence is that the guidelines are operating the way they are supposed to. About 85 percent of the sentences are either within the guideline range or outside of the guidelines at the request of the prosecution.
The sentencing commission should retain the appropriate discretion, since that discretion has been essentially taken away from judges. If we want the commission to look at this specific problem of downward departures in these cases, we should direct the sentencing commission to do just that and not take it upon ourselves to do it all by ourselves in a vacuum.
Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, I reserve the balance of my time, and reserve the right to close.
Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, when you ask for the courts to review it, that is so it can be considered in the courts with all the evidence, not in the political branch. It is better to leave it to the sentencing commission and the courts than to floor amendments in the House of Representatives.
If this is such a good idea, then let us do it through the regular order. Let us have some hearings, subcommittee markup, committee markup, and then we can slowly and deliberately consider such an amendment.
The purpose of the sentencing commission is to get away from the floor amendments and the sound bites so you can have intelligent sentencing. We have had situations where you have had sentences that are way out of proportion to crimes that are just as serious, or less serious, totally out of context. That is why we try to get away from it, so that serious crimes get serious punishment, lesser crimes get lesser punishment.
That is the purpose of the sentencing commission. You cannot do that with floor amendments in the House of Representatives. That is why we would hope this amendment could be defeated. We could get a clean Amber Alert bill passed so we can get that enacted and not have to get bogged down in consideration of amendments such as this.
Mr. Chairman, will the gentleman yield?
Mr. Chairman, I would point out that this is going in the right direction. We need to work on this as quickly as possible, in this bill or outside of this bill. I think it is a good idea, and I am in support of the amendment.
Mr. Chairman, I seek time in opposition.
Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this amendment is designed as a fix for last year's decision in Ashcroft versus Free Speech Coalition. The problem with the amendment is that it has the same problems as the law that was struck down. The Ashcroft case held that sale or possession of non-obscene computer-generated material depicting child-like characters engaged in explicit sexual activities does not constitute a crime. This bill says it is a crime, just like the law that was struck down.
Child pornography and object are despicable and illegal and can and are banned and prosecuted. These crimes and their severe punishments are left intact by the Ashcroft decision. What the court struck down was the criminalization of computer-generated and other depictions of children, which is not obscene, in undesirable, including sexual, situations where no child was actually involved in making the material.
We all see pornography as despicable, period. But under our laws, pornography that is not obscene and does not involve real children is just that, pornography. Whether we like it or not, the Supreme Court has told us that pornography is not illegal. It is a category of speech that is despicable but not illegal.
While pornography is legal, child pornography is illegal. But to constitute child pornography, the Supreme Court has told us that a child has to be involved in the production. Virtual computer-generated images, therefore, unless they are obscene, are not illegal.
The law called into question in Ashcroft was a law enacted in 1996. The problem the court found with the law was that, while it prohibited images that constituted child pornography, it also prohibited images that did not constitute child pornography, because actual children were not involved in the production.
The court made it clear that protected speech may not be banned as a means to ban unprotected speech. This would turn the first amendment upside down.
Proponents of the bill believe that the court left intact or left open the question of whether government can establish a sufficiently compelling State interest to justify criminalization of computer- generated images that are not obscene and do not involve real children. However, the court cited in its decision New York versus Ferber from 1992 when it said, virtual images record no crime and creates no victims by its production and therefore are legal.
Proponents also argue that the court did not consider the harm to real children which would occur when, through technological advances, it will become difficult to tell real children from virtual children, thereby allowing real children to be harmed because the government cannot tell the difference for the purpose of bringing prosecution.
But the court did clearly consider that, and stated, and I quote from the decision, ``The government next argues that its objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well. Virtual images, the government contends, are indistinguishable from the real ones. They are part of the same market and often exchanged. In this way, it is said virtual images promote the trafficking in works produced through the exploitation of real children.''
But then the court says, and I continue quoting, ``The hypothesis is somewhat implausible. If virtual images are identical to illegal child pornography, the illegal images will be driven from the market by indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional computer-generated images would suffice.''
Nor was the court persuaded by the argument that virtual images will make it difficult for the government to prosecute cases. As to that concern, the court said, ``Finally, the government says that the possibility of producing images by using computer imaging makes it difficult for it to prosecute those who produce pornography using real children. Experts, we are told, may have difficulty in saying whether the pictures were made using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images.
``The argument,'' the court said, ``in essence is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the first amendment upside down. The government may not suppress lawful speech as a means to suppress unlawful speech.''
Finally, Mr. Chairman, the government suggests that because the court determined that it did not decide whether an affirmative defense could save an otherwise unconstitutional law, it left open that possibility. That may be technically true, but listen to what the court said: ``In order to force this objection, the government would have us read the CPPA as not a measure suppressing speech but as a law shifting the burden to the accused to prove the speech is lawful. In this connection, the government relies on an affirmative defense under the statute which allows a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children.
``The government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech was not unlawful. The affirmative defense applies only after the prosecution has begun, and the speaker must himself prove, on the pain of felony conviction, that his conduct falls within the affirmative defense.
``In cases under the CPPA, the evidentiary burden is not trivial. Where the defendant is not the producer of the work, he may have no way of establishing the identity or even the existence of the actors. If the evidentiary issue is a serious problem for the government, as it asserts, it will be at least as difficult for the innocent possessor.''
This statute, however, Mr. Chairman, by its very words, makes illegal what the court said was legal. Five Justices joined in the majority opinion. One concurred, one concurred in part and dissented in part, two dissented.
With five Justices, all of whom are still on the court, agreeing with the whole decision and only three dissenting in any part at all, this is not a close decision with wavering members.
So, Mr. Chairman, I think we should avoid the necessity of the court's telling us again that we cannot prosecute child pornography unless real children were, in fact, involved in the production of the material or unless they are otherwise legally obscene.
Finally, Mr. Chairman, we should note the subsequent action in the Ashcroft case. The trial court on February 7, just a few weeks ago, ordered attorney's fees to the plaintiff on the grounds that the government's defense of the statute was not substantially justified. This is essentially the same statute. It says that virtual child images can be made illegal. The court has said that virtual images cannot be made illegal. Those of us who are familiar with our system of government recognize that the same ruling by the same Supreme Court will find this bill unconstitutional and unenforceable; and, therefore, the amendment should be opposed.
Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, I yield 2 minutes to the gentleman from North Dakota (Mr. Pomeroy).
Mr. Chairman, I yield myself the balance of my time.
The Supreme Court told us that virtual images produced without real children cannot be prohibited unless they are obscene. The bright line is a person has got to use real children for it to be illegal. This bill says that virtual images without using children are illegal. The same Supreme Court will make the same decision.
This amendment is unconstitutional and ought to be rejected.
Mr. Chairman, I yield back the balance of my time.