CERCLA Principles in Child Pornography Cases

Although one might not ordinarily think to associate child pornography and pollution, the two were linked at an oral argument yesterday before the United States Supreme Court. Specifically, in a child pornography case, the defendant was found guilty of viewing a child pornography video obtained from the Internet. Pursuant to federal statute, the defendant was ordered to make “restitution” in the amount of $3.4 million to the juvenile depicted in the video.

In arguments that will sound familiar to any environmental lawyer, the defendant’s counsel insisted that there had been thousands of views of the video so it would be unfair for the defendant to have to pay 100% of the victim’s harm or perhaps any of the harm since it was not possible to know what harm any individual viewer of the video had caused.  The victim’s counsel said that Congress had mandated restitution of “the full amount of the victim’s losses”.   Citing CERCLA, the lawyer claimed that Congress had intended joint and several liability — essentially arguing that the pornographer, like the polluter, should pay.

Without in any way suggesting that pollution is similar to pornography, there is much the Supreme Court could take from CERCLA liability and allocation rules, which have been honed over three decades of litigation, that would be helpful in assigning and allocating responsibility in child pornography cases.  Surely, joint and several liability with the threat of wildly disproportionate liability would create powerful disincentives to child pornography, and allowing any defendant held jointly liable to seek contribution from others who also caused the harm would spread that disincentive without imposing any additional transaction cost burden on the victim.

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