July 8, 1977 Congress of the United States Washington, D.C. 20515 The Honorable John Brademas, Chairman 2178 Rayburn House Office Building Dear Mr. Chairman: As the hearings on the Child Exploitation Prevention bill have progressed, a couple of points have arisen that would seem to require a response from the authors of the bill in terms of their legislative intent. For this reason, we would respectfully request that this letter and the enclosed report prepared by the Library of Congress be contained as part of the record of the hearings. First, the majority of the witnesses have dealt with the legislation as if it were designed to be a new piece of obscenity legislation. That was definitely not our intent in introducing the legislation. As offensive as we personally find obscene materials, our overriding concern from the beginning has been to protect children from being sexually abused by commercial exploiters. One of the first things which we investigated was the possibility of amending the Child Labor Act. We feel that the bill before you should be viewed in this light, i.e., that it was intended as a protective measure, not as a censorship measure. One thing that has become painfully apparent throughout the course There have also been statements made in the course of the hearings that any limitations on the publishing industry are unconstitutional. We would like to point out that there is ample precedent for protective legislation to apply to the publishing industry. The enclosed Library of Congress report points out that provisions of the Fair Honorable John Brademas Labor Standards Act have been held specifically applicable to the publishing industry by the courts. It also points out that goods produced in violation of a protective statute can be treated as "hot goods" or contraband throughout the chain of commerce. In this light, we feel that the proposed bill falls well within the bounds set by the Constitution. We would like to convey our personal thanks for the attention which you have given this problem and for the responsible manner in which the hearings have been held. SUBJECT: Applicability of the "Hot Goods" Provision (29 U.S.C. §212 (a)) of the Fair Labor Standards Act to the Sale of Child Pornography. This responds to your request for a discussion of the applicability of the "hot goods" provision, 29 U.S.C. $212(a), of the Fair Labor Standards Act to the retail sale of child pornography. That provision prohibits the shipment in commerce of goods which have employed the use of oppressive child labor in their manufacture. An analysis of the applicability of that provision to the sale of child pornography will include relevant case law, the definition of "goods" and 'dealers" and the applicable regulations issued by the Secretary of Labor. We do not deal here with any constitutional issues that might arise because of the necessary relation of the application of the provision to the content of the goods. It is noted first of all that the publishing industry is subject to the provisions of the Fair Labor Standards Act. The United States Supreme Court in Oklahoma Press Publishing Co. v. Walling. 327 U S. 186. 192-193 (1946) stated: The broadside assertion that petitioners "could not the reason that "application of this Act to its adversely affect commerce. Under the Fair Labor Standards Act the term "goods" is defined generally at 29 U.S.C. §203(i) to include the following: goods (including ships and marine equipment) wares, other than a producer, manufacturer or processor "Goods" have been held to specifically include books. Brennan v. Indiana, 517 F. 2d 1179 (7th Cir. 1975). By regulation issued by the Secretary of Labor "goods" are said to include written materials such as newspapers, magazines, brochures, phamplets, etc. 29 C.F.R. $779.107. A retailer does not appear to be an ultimate consumer, so a retailer would not come under the exclusionary clause in the above definition of "goods". The exclusion was intended to apply to goods which, having reached the hands of the ultimate consumer, have been withdrawn from further traffic and sale. Hamlet Ice Co, v. Fleming, 127 F. 2d 165 (4th Cir. 1942), cert. den. 317 U.S. 634 (1942); Chapman v. Home Ice Co., 136 F. 2d 353 (5th Cir. 1943), cert. den. 320 U.S. 761 (1943). Since a retailer sells goods he is not an ultimate consumer. We may now turn to the section specifically dealing with "hot goods". That section, 29 U.S.C. §212(a), reads in pertinant part: No producer, manufacturer or dealer shall ship The Secretary of Labor has stated by regulation that the term "dealer" in the above section includes retailers. 29 C.F.R. $570.105. Thus, it is unlawful for retailers (as well as producers and manufacturers) to ship or transport in commerce any goods which employed oppressive child labor within thirty days prior to the removal of the goods. The Secretary has also stated that "hot goods" remain "hot" as long as they remain "goods". 29 C.F.R. $570.111. Section 212(a) permits one exception to the "hot goods" prohibition: where the goods are acquired in good faith and upon written assurance that they were produced in compliance with the provisions of Section 212 then the purchaser is not liable for an unlawful act. In general, the Fair Labor Standards Act (with certain exeptions and qualifications) defines oppressive child labor as a condition of employment under which any employee under 16 is employed by an employer in any occupation; and, any employee between 16 and 18 is employeed by an employer in any hazardous occupation. 29 U.S.C. §203(1). It is thus conceivable that retailers of child pornography (and manufacturers) could be found liable under the "hot goods" provision of 29 U.S.C. §212(a). This would be so where child pornography is shipped in commerce and where the use of children in the manufacture of pornographic materials is considered to be oppressive child labor. Kathleen E. Shea Kathleen E. Shea |