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Academics Both Left and Right Endorse Congressional Action to Fix the Supreme Court’s Decision in Paroline

Seldom has an issue—any issue—garnered such bi-partisan support as the Amy and Vicky Act which passed the Senate in February 98–0. Unfortunately the bill remains stalled in the House Judiciary Committee despite a March hearing and bi-partisan vows of quick Congressional action.

Perhaps most surprising of all is that the AVA has near universal support (except from child pornography defendants) from both Republicans and Democrats, and liberal and conservative academics.

Consider this piece from one of the 100 most influential lawyers in America, Professor Richard L. Hasen, at the University of California Irvine School of Law:

Today the Supreme Court decided a statutory interpretation case, Paroline v. U.S. with no easy answer, an unusual cross-ideological divide among the Justices, an interpretation offered by the majority which Adam Liptak rightfully describes as “a new and vague legal standard,” and a Chief Justice in his dissenting opinion begging Congress to fix the problem (“The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.”). Even though Congress rarely overrides [the Supreme Court] these days, I predict an override in this case, and probably relatively quickly….

But thinking about this from the point of view of Legislation, this seems the ideal case for a Congressional override. As I’ve noted in a recent law review article, Congress now rarely overrides the Court, and when it does, there tend to be partisan overrides (as when Republicans overrode the Supreme Court in cutting back habeas for detainees in Hamdan or when Democrats overrode the Supreme Court in allowing more employment remedies in Ledbetter). I attribute the decline of bipartisan overrides to increasing political polarization in Congress….

But even in an era of intense partisanship, as we are in right now, there is room sometimes for biparisanship, and this looks like the perfect opportunity for two reasons. First, everyone hates child pornographers and wants to look tough on crime. Unless Congress is satisfied with the vague standard of the majority, it could look good for all of Congress to get tougher than the Court was willing to be on child pornographers—particularly when the Court’s ruling means that many victims are undercompensated….

Second, though related to the first point, taking a stand in favor of fixing the statute won’t be seen as going up against the Supreme Court. If all the conservatives were on one side and all the liberals on the other in a 5–4 decision, then an override of a Supreme Court statutory case looks like an attack on one wing of the Court. Here, you have a case with a cross-ideological majority throwing up its hands as to an administrable rule, and three of four dissenters asking Congress to step in.

In an era where Congress can do so little thanks to ideological polarization, a new Amy Act looks to be a no-brainer.

Similarly, this piece in The Federalist Society’s journal Engage, calls on Congress to fix the statute that three conservative justices in Paroline found “impossible:”

In the end, Congress will have to fix the statute it wrote. Well intentioned guidance by the Supreme Court is simply no substitute for the hard work of legislating. And in the meantime, busy trial courts will work with what they have, and do their best to dispense justice under difficult circumstances, and in often heartbreaking cases. Congress, however, appears to believe that Amy deserves better.

Finally, Professor Marci Hamilton, who clerked for Supreme Court Justice Sandra Day O’Connor, best sums up the need for Congressional action in the wake of the Paroline decision:

This is a hard case, in part because we are still not very good at dealing with the evils of the Internet. As Justice Kennedy’s majority opinion and Justice Sotomayor’s dissent agreed, it just cannot be that a victim should have to prove that she knew the identity of the posessors and traders in her images when the distribution network is the Internet. That is an impossible task. And, without question, she was harmed by Paroline, even if she did not know about him.

But it is even more of a hard case, because Congress’s language is not clear, and the system it laid out does not comport with anything we have seen before. There is a simple two-part fix, if you parse Justice Kennedy’s and Justice Sotomayor’s views closely enough: (1) Congress should enact a federal rule of contribution among child pornography defendants and (2) replace “proximate cause” with “aggregate causation.” That would make it possible for the many Amys of our world to obtain restitution from even one perpetrator in the marketplace and obtain full restitution. The best part of this solution is that it would then incentivize the one defendant forced to pay it all to identify others as contributors. Let the defendants go after their many contacts in the market for contribution. That reduces the restitution, even if levied against a single person, from an excessive personal fine, and puts the burden of parsing out blame on the bad guys, not the victims who never asked to be on the Internet in the first place.

The AVA incorporates both of Professor Hamilton’s suggestions with a federal rule of contribution among child pornography defendants and by replacing proximate cause with aggregate causation.

Most of these articles were written over 18 months ago. The Congressional “hard work of legislating” which seemed like such a bi-partisan “no-brainer” back in 2014 to fix a “system [which] does not comport with anything we have seen before” remains tragically elusive.

It’s time for the House to get moving to finally pass the AVA! With 38 Republican co-sponsors and 35 Democrat co-sponsors, the AVA completely lacks “ideological polarization.” And maybe that’s the problem. But with an election approaching in just 12 months “it could look good for all of Congress to get tougher than the Court was willing to be on child pornographers—particularly when the Court’s ruling means that many victims are undercompensated.”

Contact House Judiciary Chair Bob Goodlatte [R-VA] and ask him to vote S.295/H.R. 595 out of the House Judiciary Committee for a swift vote by the full House.

It’s time for the House to pass the AVA. Child pornography victims have waited long enough!

Also posted at HuffPost Crime