Posted by Eugene Volokh:
Releasing Copies of Evidence = Violation of Federal Child Porn Laws?
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184264690
The [1]Atlanta Journal-Constitution reports (thanks to [2]How
Appealing for the pointer):
Douglas County District Attorney David McDade violated federal law
when he distributed a videotape from a rape and child molestation
case to legislators and journalists, the U.S. attorney's office
said Wednesday.
U.S. Attorney David Nahmias said federal law prohibited
distributing the videotape because it depicted minors engaged in
sexually explicit conduct and warned that people who had received
it would be in violation of federal child pornography laws.
The videotape was of the raunchy party in a Douglasville hotel room
that led to the conviction of Genarlow Wilson on aggravated child
molestation charges. Wilson was 17 at the time and the tape showed
him receiving consensual oral sex from a 15-year-old girl. The
video has been given to both reporters and legislators....
McDade told The Associated Press he was required to release the
tape under the state's Open Records Act because it was introduced
as evidence at the trial.
The distribution of such material would indeed normally be child
pornography; and [3]the federal child pornography ban would preempt
any state law to the contrary. The questions, I take it, would be:
(1) Is there some implicit exception to the federal law as to videos
such as this one, and what is its scope? I take it that there must be
some such exception, or else the video couldn't even be handed from
the police to the prosecutor in federal enclaves, such as D.C., but
the question is whether the exception extends to distribution to the
media and to legislators.
(2) Should the First Amendment be read as mandating an exception for
videos and photographs that are evidence in a criminal trial, and
seeing which may be helpful to understanding whether justice was done
in the criminal process (which is to say whether the sentence was
substantively sound, not just whether the procedures were followed) --
and, again, what should the scope of the exception be?
(3) Is there some state sovereign power limit on federal law, where
the distribution or possession of the material is part of the state
government's law enforcement process (this would apply to, for
instance, e-mailing or mailing material within the prosecutor's or
police department's office) or as part of the state government's
compliance with its own public records laws?
I don't know what the answers to these questions are, but the issue
struck me as worth flagging.
By the way, "Nahmias said his office issued the statement to end
further distribution of the videotape and advised those who possessed
it to destroy or return it." That is certainly very good advice for
anyone who has the tape in his hands, and who is rationally
risk-averse.
References
1. http://www.ajc.com/metro/content/printedition/2007/07/12/wilson.html
2. http://howappealing.law.com/
3.
http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002252----000-.html
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