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FREE SPEECH AND SELF-INCRIMINATION - THE CONSTITUTIONALITY OF CALIFORNIA'S NEW CHILD PORNOGRAPHY LAWS

NCJ Number
61276
Journal
Pacific Law Journal Volume: 10 Issue: 1 Dated: (JANUARY 1979) Pages: 119-140
Author(s)
A T CASO
Date Published
1979
Length
22 pages
Annotation
THE CONSTITUTIONALITY OF CALIFORNIA'S NEW CHILD PORNOGRAPHY LAWS IS EXAMINED WITH RESPECT TO SELF-INCRIMINATION, AND FREE SPEECH.
Abstract
THE CALIFORNIA LEGISLATURE ENACTED SEVERAL NEW LAWS PROHIBITING THE PRODUCTION OF CHILD PORNOGRAPHY AND THE POSSESSION FOR DISTRIBUTION OF OBSCENE MATERIAL DEPICTING MINORS ENGAGED IN SPECIFIED SEXUAL CONDUCT. TO AID LAW ENFORCEMENT OFFICIALS IN THE IDENTIFICATION OF PERSONS ENGAGED IN THE ILLEGAL PRODUCTION OF CHILD PORNOGRAPHY, THE LEGISLATURE HAS ALSO IMPOSED A RECORDKEEPING REQUIREMENT ON THE DISTRIBUTORS OF THIS MATERIAL. THE RECORDKEEPING REQUIREMENT IS VITAL TO THE EFFECTIVE OPERATION OF THE LEGISLATIVE SCHEME. THE REQUIREMENT IS LIKELY TO BE CHALLENGED ON THE BASIS OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION. SUCH A CHALLENGE SHOULD SUCCEED, BECAUSE THE RECORDKEEPING REQUIREMENT DEMANDS INDIVIDUALS WHO ILLEGALLY POSSESS OBSCENE MATERIAL DEPICTING MINORS ENGAGED IN SEXUAL CONDUCT TO MAKE AND PRESERVE A RECORD OF THEIR CRIME AND TO HOLD THAT RECORD OPEN FOR INSPECTION BY LAW ENFORCEMENT OFFICIALS. THIS CONSTITUTIONAL DEFECT IS CURABLE BY MEANS OF A GRANT OF IMMUNITY TO THE RECORDKEEPER. USE AND DERIVATIVE USE IMMUNITY ARE BEST SUITED TO THE LEGISLATIVE SCHEME, SINCE THEY WOULD SHIELD THE RECORDKEEPING REQUIREMENT FROM CONSTITUTIONAL ATTACK, BUT WOULD NOT ERECT A BARRIER TO PROSECUTIONS OF THE RECORDKEEPER UNDER THE FELONY-FOR-POSSESSION STATUTE, IF EVIDENCE OF THAT CRIME EXISTS INDEPENDENT OF THE REQUIRED RECORDS. (AUTHOR ABSTRACT MODIFIED--RCB)

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