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The Champion

January 2009 , Page 32 

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Defending Internet Pornography Cases By Challenging Interstate Jurisdictional Elements Under U.S. v. Schaefer

By Colin Fieman

Defending clients charged with receipt or possession of child pornography presents unique challenges. Apart from the mental health problems clients may be laboring under and the visceral reaction judges and jurors have to these types of offenses, many pornography cases arrive with damaging admissions, forensic reports from government computer experts, and draconian penalties. As the recent decision in United States v. Schaefer1 shows, however, Internet pornography cases can sometimes be successfully defended by focusing on the frequently overlooked interstate commerce element of the receipt and possession statutes.2  

For practitioners who may be unfamiliar with these statutes, it is important first to note that an interstate commerce defense has nothing to do with the power of Congress under the Constitution’s interstate commerce clause to criminalize receipt or possession of pornography. That authority cannot be seriously disputed.3 Instead, the defense arises from the interstate juri

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