Summary
Maryland S.B. 736 would expand the definition of child pornography to include computer-generated images that are indistinguishable from an actual minor under the age of 16 years old.
A violation would be subject to up to five years in prison for a first offense and 10 years for a second offense.
Status
The Senate Committee on Judicial Proceedings had a hearing on the bill on February 22, 2019.
Action
On February 15, 2019 Media Coalition submitted a memo in opposition to the Senate Committee on Judicial Proceedings, ahead of a scheduled hearing on the bill on February 22, 2019.
Analysis
- The Supreme Court struck down the section of the Child Pornography Prevention Act that criminalized computer-generated images or pictures that appeared to be a minor engaged in real or simulated sexual activity or with his or her genitals lasciviously display. Ashcroft v. Free Speech Coalition (2002)
- The Supreme Court emphasized that the exception to the First Amendment for child pornography was limited to pictures of actual children being sexually abused, not representations that appear to be of a minor. New York v. Ferber (1982)
- The Supreme Court dismissed the argument that the CPPA could be upheld by reading the statute as only applying to images that are “virtually indistinguishable” from images created with actual minors. The Court found that virtual images are clearly distinct from images of actual minors. A virtual image “records no crime and creates no victims by its production.” Free Speech Coalition (2002)
- The bill is also vague. It makes it illegal to possess or retain computer-generated images that are indistinguishable from a minor less than 16 years of age. While it is possible to determine if a person in an image is pre-pubescent or post-pubescent, the legislation provides no guidelines for how to determine if a computer-generated image is illegal because it is “indistinguishable” from someone 15 years and 364 days old versus a computer-generated image of a 16 year old.
History
- On January 22, 2019, the bill was introduced and referred to the House Committees on Intrastate Commerce, on Judiciary, on Consumer Protection and Commerce, and on Finance.
- On February 15, 2019, Media Coalition submitted a memo in opposition to the Senate Committee on Judicial Proceedings ahead of a scheduled bill hearing on February 22, 2019.
- On February 22, 2019, the Senate Committee on Judicial Proceedings had a hearing on the bill. No action was taken at the hearing.