Child pornography and the Commerce Clause

[Volokh, Eugene]

        From U.S. v. Corp (the guy's last name, not short for Corporation),
2001 WL 6158, http://laws.findlaw.com/6th/01a0002p.html:

        "Corp, then a twenty-three year old resident of Big Rapids,
Michigan, population of about 12,600, brought film to be developed at the
Southland Pharmacy in Big Rapids.  Being suspicious because of Corp's
alleged comment that 'these are sick' when he dropped off the film and
because of the sexual content of the photographs, pharmacy employees
contacted the local police.  The photographs were pornographic shots of
young females.  The police department investigated and contacted the
principal of a high school in Reed City (population of about 2,400) to
ascertain the possible identity of the females in the pictures.

        "Two of the females were identified as Sandra Sauntman, then 17
years old, and another younger female, both enrolled at the school.  Corp
first began dating Sauntman when she was about seventeen. It was
subsequently discovered, however, that another female in the pictures was
Corp's then 26-year-old wife, Heather, with whom Corp has a young child.
The pictures showed Heather engaging in sexual activity with Sauntman, but
Heather was not a defendant in this case. . . .

        "While we are faced with serious questions about the
constitutionality of the Act under the Commerce Clause power of Congress, we
choose not to declare the Act facially unconstitutional. Instead, we assume,
along with the Rodia and Robinson courts, that Morrison and Lopez have
required that the jurisdictional components of constitutional statutes are
to be read as meaningful restrictions.  Furthermore, we do not determine the
aggregate effect on interstate commerce of the purely intrastate dealing in
child pornography. Instead, we conclude that Corp's activity was not of a
type demonstrated substantially to be connected or related to interstate
commerce on the facts of this case.  Under the undisputed circumstances
here, Corp was not involved, nor intended to be involved, in the
distribution or sharing with others of the pictures in question. Sauntman
was not an 'exploited child' nor a victim in any real and practical sense in
this case.  In the other cases that have addressed this issue, the courts
were faced with the much more threatening situation where an adult was
taking advantage of a much younger child or using the imagery for abusive or
semi-commercial purposes.

        "Was the activity in this case related to explicit and graphic
pictures of children engaged in sexual activity, particularly children about
fourteen years of age or under, for commercial or exploitive purposes?  Were
there multiple children so pictured?  Were the children otherwise sexually
abused?  Was there a record that defendant repeatedly engaged in such
conduct or other sexually abusive conduct with children?  Did defendant move
from place to place, or state to state, and repeatedly engage in production
of such pictures of children?  These questions are relevant to a
determination on a case-by-case basis about whether the activity involved in
a certain case had a substantial effect on commerce.

        "Corp was not alleged to be a pedophile nor was he alleged to have
been illegally sexually involved with minors other than Sauntman, who was
merely months away from reaching majority.  Clearly, Corp was not the
typical offender feared by Congress that would become addicted to
pornography and perpetuate the industry via interstate connections.  Under
these circumstances, the government has failed to make a showing that Corp's
sort of activity would substantially affect interstate commerce.
Havingreached this conclusion, we need not decide whether the conduct in
this case was commercial activity within the meaning of Morrison."
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