First Amendment Must Yield to Child Pornography Law

Facing its first constitutional challenge to the Florida Computer Pornography and Child Exploitation Prevention Act of 1986, Fla. Stat. ch. 847.0135(3) (2001) (the Act), the Florida Court of Appeals recently scored a victory for child protection advocates and law enforcement in Cashatt v. State of Florida, Case No. 1D02-4638, 2004 Fla. App. LEXIS 5656 (April 26, 2004).

Cashatt, a retired U.S. Navy officer, pled no contest to a violation of the Act, after he was arrested for arranging, over the Internet, to meet with a detective, who was posing as a 14-year-old boy, for the purpose of participating in illegal sexual activities. On appeal, defendant challenged the facial constitutionality of the Act and argued that the statute was invalid for failure to state a mens rea or scienter requirement.

The appellate court ruled that even if the Act was considered a content-based restriction on constitutionally protected speech, it passed the “strict scrutiny” test because it promoted a compelling state interest in protecting children from persons who solicited or lured them to commit illegal acts, and was narrowly tailored to promote that interest, specifically limiting its prohibitions to communication intended to solicit or lure a child to commit illegal acts.

“We have grave doubts that the framers of the Constitution,” the per curiam court wrote, “had they the gift of seeing into the future, would have intended that sexually explicit e-mails sent to a minor for the purpose of seducing the minor to engage in illegal sexual acts be protected under the First Amendment, notwithstanding that identical communications to an adult would be protected.”

In his Commerce Clause challenge, Cashatt argued that the state statute neither evenhandedly promoted a legitimate local public interest nor posed merely incidental effects on interstate commerce on balance. The appellate court found that any incidental burden placed on interstate commerce by the statute was minimal and was far outweighed by the state's interest in protecting minors from harm. “Where a state statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld,” the court wrote, “unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits.”

' Samuel Fineman, Esq.

Facing its first constitutional challenge to the Florida Computer Pornography and Child Exploitation Prevention Act of 1986, Fla. Stat. ch. 847.0135(3) (2001) (the Act), the Florida Court of Appeals recently scored a victory for child protection advocates and law enforcement in Cashatt v. State of Florida, Case No. 1D02-4638, 2004 Fla. App. LEXIS 5656 (April 26, 2004).

Cashatt, a retired U.S. Navy officer, pled no contest to a violation of the Act, after he was arrested for arranging, over the Internet, to meet with a detective, who was posing as a 14-year-old boy, for the purpose of participating in illegal sexual activities. On appeal, defendant challenged the facial constitutionality of the Act and argued that the statute was invalid for failure to state a mens rea or scienter requirement.

The appellate court ruled that even if the Act was considered a content-based restriction on constitutionally protected speech, it passed the “strict scrutiny” test because it promoted a compelling state interest in protecting children from persons who solicited or lured them to commit illegal acts, and was narrowly tailored to promote that interest, specifically limiting its prohibitions to communication intended to solicit or lure a child to commit illegal acts.

“We have grave doubts that the framers of the Constitution,” the per curiam court wrote, “had they the gift of seeing into the future, would have intended that sexually explicit e-mails sent to a minor for the purpose of seducing the minor to engage in illegal sexual acts be protected under the First Amendment, notwithstanding that identical communications to an adult would be protected.”

In his Commerce Clause challenge, Cashatt argued that the state statute neither evenhandedly promoted a legitimate local public interest nor posed merely incidental effects on interstate commerce on balance. The appellate court found that any incidental burden placed on interstate commerce by the statute was minimal and was far outweighed by the state's interest in protecting minors from harm. “Where a state statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld,” the court wrote, “unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits.”

' Samuel Fineman, Esq.