On June 6, U.S. Rep. Chris Cannon, R-Utah, proposed a new bill, HR 5528, titled the Pornography Jurisdiction Limitation Act of 2006. Under the terms of the brief bill, "no court created by act of Congress shall have jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide a question of whether a state pornography law imposes a constitutionally invalid restriction on the freedom of expression."
Cannon's legislation would block federal court challenges to any "law [that] restricts a depiction, description, or display of nudity or sexual conduct."
In a statement, Cannon expressed concern over federal court decisions that have invalidated state anti-pornography laws.
"For too long," Cannon said, "federal courts have been creating a dangerous climate for our children by overturning important decisions by state courts to restrict pornography consumption and distribution within their borders. My legislation simply lets states decide for themselves how they tackle this problem."
Longtime Anti-porn
Cannon is currently a member of the House Judiciary Committee and a longtime proponent of stronger federal anti-pornography legislation.
In 1998, for instance, he voted to strip the National Endowment for the Arts of nearly $100 million to protest its support for allegedly blasphemous and pornographic art. He also supported passage of the Communications Decency Act, the Child Online Protection Act and the Child Pornography Prevention Act. All three laws have been struck down or tightly limited by the U.S. Supreme Court.
Social conservatives, including Cannon, have grown increasingly incensed over federal court invalidation of state anti-pornography laws. With the rise of the online adult industry, a number of states — including New York, New Mexico, Michigan, Virginia, Arizona and Vermont — passed legislation designed to extend their existing pornography restrictions to the Internet. In each instance, the laws were thrown out as unconstitutional by federal court judges, who ruled that the state content regulations violated the 1st Amendment. The courts also ruled that state attempts to regulate online activity beyond their borders are a violation of the Constitution's Commerce Clause, which reserves that power to Congress.
"It is not the job of the courts to legislate," Cannon stated. "My legislation puts the power to protect families back in the hands of the states, where it rightfully belongs. If there are those who believe a state's anti-pornography laws are too strict, they can find another state in which to live."
The Free Speech Coalition, which is currently challenging a Utah law that provides for an email registry, strenuously opposes the proposed legislation. In a summary prepared by Legislative Affairs Director Kat Sunlove and FSC counsel Reed Lee, the FSC argued that the law would lead to the "Balkanization of expression in the U.S."
"Although American law and society have been moving toward more conformity in acceptance of sexual speech, not less, this bill would allow an individual state to ban an otherwise legal movie or book, with no possibility of federal court review," the FSC summary stated. "HR 5528 would allow states to reduce the expression available to adults regarding sexuality and nudity to material that is suitable only for minors."
Pornography is not the only issue congressional conservatives want to remove from the federal docket. For the past three decades, legislation has been proposed to strip the federal courts of their jurisdiction to hear certain types of cases as a way of protesting what conservatives describe as "judicial lawmaking."
As early as 1979, for instance, former Sen. Jesse Helms, RN. C., proposed removing the ability of federal courts to hear challenges to state school prayer laws. When President Reagan took office in 1981, conservatives proposed legislation that would have stripped the federal courts of their ability to hear a wide array of cases.
The proposals to strip federal courts of certain types of jurisdiction were widely opposed by legal scholars, bar associations and even state court chief judges, who adopted a resolution warning that the proposed legislation would overwhelm state court dockets and cause confusion throughout the country. One result of the legislation, the judges said, is that "[t]he United States Constitution would mean something different in each of the 50 states."
A similar result would occur if Cannon's bill becomes law. The 1st Amendment would no longer be the minimum protection required for sexually explicit text, images or video.
Under the U.S. system of dual sovereignty, the various states are required to adhere to the basic rights provided by the Constitution. Individual states can provide greater rights than the Constitution (such as in Massachusetts, where the high court ruled that the state constitution gives gays the right to marry), but they cannot provide fewer rights. The determination of whether a particular state law complies with the federal constitution is typically made by a federal court judge and ultimately, by the U.S. Supreme Court.
Cannon's law would remove that protection and give states the ability to impose greater restrictions on speech that is currently protected by the 1st Amendment. As a practical matter, the producer of any content containing nudity or sexual conduct would have to comply with up to 50 different state laws, making the distribution of such materials over the Internet exceedingly complicated and risky.
Free-speech Side-stepper
Although the court-stripping legislation proposed during the Reagan administration did not pass, the idea continues to be popular among conservatives as a tool for sidestepping constitutional guarantees.
Various legislators have suggested stripping courts of the ability to hear constitutional challenges to the Defense of Marriage Act, which frees states from having to recognize gay marriages performed in other states and denies federal marital benefits to same-sex couples. Other court-stripping proposals would prevent courts from hearing cases involving the Pledge of Allegiance or the national motto "In God we trust."
Most recently, President George W. Bush signed the Detainee Treatment Act, legislation that removes the ability of the federal courts to hear habeas corpus petitions filed by Guantánamo detainees. (A habeas corpus petition asks a court to order the production of a prisoner so that a determination can be made if he or she is being lawfully held.)
There is relatively little likelihood that Cannon's bill will make it into law. The same day that he introduced his bill, it was referred to the House Judiciary Committee, and no further action has been taken.
The current Congress finishes its work shortly after the November elections, so unless Cannon's bill passes both the House and Senate and is signed into law by Bush before then, it would have to be introduced again when the new Congress takes office in January.
One interesting question is whether a federal court challenge could be raised to the Pornography Jurisdiction Limitation Act itself. While the answer to that question is almost certainly "yes," it is less certain how the U.S. Supreme Court will rule on efforts by Congress to take away certain types of federal court jurisdiction.
Wholly apart from the significant constitutional questions raised by HR 5528, in particular and court-stripping legislation, Cannon's bill includes vague terminology. The term "pornography" encompasses far more material than the term "obscenity," which has been the standard for what is legal and illegal since 1973. Of course, the decision establishing that term — Miller vs. California — was decided by the U.S. Supreme Court. Cannon's bill would free the states from that ruling and essentially wipe out three decades of federal court precedent.
It is not altogether certain whether Cannon will be part of the new Congress. The six-term congressman from Utah's 3rd Congressional District recently defeated Republican businessman John Jacobs in his toughest primary challenge to date.
A spokesman for Cannon denied that the conservative congressman's primary battle had anything to do with the new proposal.
Jacobs refused to answer a question from a Utah Daily Herald reporter about Cannon's motivation but expressed skepticism about whether the congressman's bill was "feasible."
Frederick Lane is an expert witness, lecturer, and author of "Obscene Profits" (Routledge 2000) and "The Naked Employee" (Amacom 2003).
