Sex, Laws, and Videotape (Genarlow WIlson Edition)

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6 Responses

  1. Nate Oman says:

    If there is a conflict here, how difficult is it to actually resolve the case? It seems to me that the Supremacy Clause would make short work of the state law. After all, if Congress makes some behavior (say voter discrimination) a crime, I don’t see that there is much of a defense in claiming that one’s actions are required by state law. Of course, I am willing to be shown wrong on this point by the criminal law gurus in our midst.

  2. Nate:

    Agreed, the federal law almost surely trumps. But that’s not a fully comfortable outcome in my view. ABC and the Associated Press have to destroy the tape on which this case turns, a case that has now become a big political and social issue? And no one can see it any more? It’s just the sort of thing that open government law aims to prevent.

  3. Frank G says:

    I agree that the Supremacy Clause clearly controls. I wanted to add, though, that the concept of “open government” seems inapposite in this case. Open government is not at play when dealing with prosecutorial discretion or judicial decision making. Just because it is part of a “big political and social issue” does not mean that it ought to be made available to some or all of the interested legislators, pundits, or the public. At its root (and according to federal law), this tape depicts child pronography – public curiousity is no reason to publish it, redacted or not.

  4. Jason H says:

    William’s 9:36 post makes another interesting point. Once the media has the tape, the outcome isn’t necessarily certain under the Supremacy Clause because now the First Amendment comes into play. See the Pentagon Papers case. It seems like the time the feds could have asserted the federal obscenity laws as a Supremacy argument would have been in an injunction action to prevent the state from responding under its open records law. Now that the cat’s out of the bag, it’s not at all clear that the Supremacy Clause can function to put it back in.

  5. Frank G says:

    Jason, You are right that when the media has the tape the Supremacy Clause is no longer relevant, but the federal child pornography law in question governs possession and distribution of this tape no matter who has it. The First Amendment allows prior retraint of speech when the “speech” in question in child pornography. In the Pentagon Papers case the Court had to balance alleged national security interest against the papers’ First Amendment right to publish the information, and the Court was very sceptical of the government’s claim of risk to national security. In this case, child pornography is, on its face, child pornography, so, as I understand it, no balancing is even necessary and its supression is valid in spite of First Amendment.

  6. TJ says:

    Isn’t this a pure first amendment issue now? The Federal child pornography statute survived facial attack, so it trumps the state law. The question is whether enforcing the the child pornography statute as applied in this case violates the First Amendment. Yes the government can usually suppress child pornography, but not always. For example, artistic photos of nude children would be a close case. Here, the video is at the center of a public political debate. I doubt that the First Amendment would premit its suppression, even if it fits the definition of child pornography under the statute.