The U.S. Court of Appeals for the D.C. circuit has held that the Commerce Clause permits Congress to criminalize purely interstate possession of child pornography. The Court applied Wickard v. Filburn, 317 U.S. 111 (1942) (wheat) and Gonzales v. Raich, 125 S. Ct. 2195 (2005) (marijuana). In so holding, the D.C. Circuit joined the conclusions of every other federal court that has interpreted Raich (the Fourth, Tenth, and Eleventh Circuits). Two judges joined the majority and the third concurred in a separate opinion.
In this case, plaintiff entered a conditional guilty plea, admitting he downloaded about 75,000 files of child pornography onto his computer while working for FOX News in D.C. ("possession"). He moved to dismiss the indictment on grounds that, as applied, the law prohibiting knowingly possessing child porn that was transported through interstate or foreign commerce exceeded Congress's authority. The district court ruled against plaintiff's motion to dismiss. The circuit court affirmed. It noted that the Raich Court observed that wheat- and marijuana-possession laws both prohibit the cultivation, for home consumption, of a fungible commodity for which there is an established interstate market. The circuit court noted that the interstate economic effects of child porn are "even more compelling than those in Raich or Wickard. In contrast to wheat or marijuana, the supply of electronic images of child pornography has a viral character: every time one user downloads an image, he simultaneously produces a duplicate version of that image. Transfers of wheat or marijuana merely subdivide and existing cache; transfers of digital pornography, on the other hand, multiply the existing supply of the commodity * * * subsequent possessors may further propagate the images. * * * This multiplying effect highlights the importance of eliminating a possessor's stash in the first instance * * *." In sum, the court held that a rational basis exists exists to regulate the intrastate possession of child porn because failure to do so would leave a significant gap in Congress's efforts to eliminate the market for sexually exploitative uses of children.
The concurring judge noted the difficulties arising from "the apparent inconsistency of Raich with Lopez [514 U.S. 549 (1995)]," which set out three categories in which Congress may regulate commerce. The concurrence questioned "how purely intrastate possession of a product that has previously traveled interstate substantially affects interstate commerce." The concurring judge wrote that he has "hope that the High Court in some further decision gives us some better method of reconciling its holdings on the extent of congressional power under the Interstate Commerce Clause."
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