 Good afternoon. We are now live welcome back to Vermont House Judiciary Committee and we are continuing our discussions on bills that are currently in the committee. This afternoon we'll be looking at age 18, and we're waiting for legislative council to give us a walkthrough on that. I did want to go back to this morning on age 18, I'm sorry age 20, and I want to thank Representative Tom Burt it for sitting in as as chair I was listening to both of my meetings at the, at the same time and I appreciate the conversation and the concerns that that came up about age 20 and it shows that really nothing is simple no matter how technical or simple we think the bill is. There are always often other other questions and so I appreciated the questions so what I've asked Mike to do is to get back to this on Tuesday afternoon and and hear from you and have a chance to hear from David share, invite willa again and judge Greerson, and, and then after that, see where we, where we are because I know that there was some discussion about after hearing from the defender general that kind of made more sense it fell into place I know that certainly the larger question of risk assessments and how they're used and how reliable they are. And the inherent bias. That's a much larger discussions a very important discussion. And we certainly should, if we do want to go down that road we certainly should speak to the institutions committee and I would speak to the chair that that committee because that certainly is the jurisdiction of the institutions committee. So what I like to do is Tuesday let's get some more testimony. See where we're at and and proceed from from there. Does that make sense to folks who are actually there unlike me. See a thumbs up from Martin from time I see a budget. Okay. Great Barbara. Yeah, go ahead. I have one other group and I can check in offline with them is I was curious about the ACLU. Yeah, been vocal in Colorado about concerns with risk assessments. I did have them I did jot them down and I, again, if we dive deeper into this, then that might be a time when we do that have that discussion with with institutions. But we can. Again, we can think about it we could also if we want to report back or if we want to study you know there are many ways we can, we can go right on the language of this bill. Come. Yeah, not that I'm advocating for us to do it but why, why would that go to institutions. I don't know if it would go to institutions or if, but certainly risk assessments department corrections right department corrections, certainly within institutions. Right. I would say they have primary jurisdiction over institution doesn't mean we can't look at it. Also, but I think that's something that the chairwoman and then this would, would, you know, need to know about. Sure. And it may be something that they're already looking at you know certainly justice for your investment to has been looking at those issues so. Great. Thank you. Sure. Okay. Anybody else. My follow up with Tom as well is, I think it's as much for consistency if we're pushing back on use of risk assessment in the courts and for pre trial and all those things. And over an institutions they're gung ho for it and I don't know that that's the case. We need to have that kind of inconsistency as far as the message from the legislature on the role of risk assessment so that's why I think, kind of a broad look and possibly bringing in institutions so I'll definitely bringing them in if, if in fact we're going to take such a broad look. Yeah. Thank you. Okay. So I'm hoping I know Mike is working on a joint meeting with Senate judiciary for next week to hear the, to hear the report. So that's a great question. So that's a great question. So that was our DAP right racial disparities. Somebody helped me in the juvenile. And guys repanel. Recently as racial disparities advisory panel. It's a much longer official name. Right, right. So. So that'd be great if we can, if we can do that. Be great to have a ton and others. Speak to us. And so, so stay tuned. It's a go. Okay. Yes. Great. Great. We'll be hosting it. Okay. We're hosting it. Okay. I'll talk to Senator Sears about that. Okay. Good. And I thought I saw a coach's hand up. Right coach. Hi. No, I think we. Okay. I coach I can't hear you. Coach you muted. The thing is when you hover over that button, it keeps going back and forth back and forth. But anyways, got to love the technology. Sometimes it's better to just hold the space bar. Because that. That does the same thing. I think that Martin. Covered it. You know, pretty well as far as integrating that discussion. With corrections. It just seems to make sense if we go that deep in the dive. One of the other things that came up during the discussion. Was clarity. Within the section, because right now. When you first read it, you really can't tell. It's specifically about bail. You know, you know, what's the purpose. You know, so. So that was one of the things, but we're going to save some questions we had for. Mr. Eric. Right. And also, I think it'll be helpful hearing from. David share with the attorney general's office. As well as. Some of the other witnesses that we can get to today. Judge Greerson. Greerson. Was a one that came up to. Yeah. Yeah. So hopefully we'll hear from. We'll hear from Judge Greerson and the others on Tuesday, but I'm going to hold off with the commissioner of. Corrections or ACLU or the other folks that we would hear about if we were going to take a deeper dive. So. Okay. I see people are coming on. I don't see Michelle yet, but hopefully. Soon. I don't know. She, she sent us an email saying that she had child pickup duty between one and two. So she could be on right after that. I just remembered that. And I've sent her text messages saying that we're ready when she is, but. Okay. Let me think for a minute. So Michelle was going to do a walkthrough of the actual bill. I do see that Matthew Raymond is here weekly. So I'm going to go. I'm going to go. Maybe have Matthew. That talk to us. Cause we rushed. I rushed him the other day, but sort of give us more context about these cases. Why this bill is needed. Sort of a general overview. And then, then when Michelle is available, we could, we could go back and do a. A walkthrough of the bill. If that, if that works for. For folks and for, for Matt Raymond. I'm going to go back and do a walkthrough of the bill. Okay. Great. Thank you. Appreciate your, your flexibility. Thank you so much. So welcome. Hi, thank you. So again, it's Matt Raymond. I'm the commander of the Vermont internet crimes and children task force. And last week, I believe it was idea, but intro to the task force and what we do. One of the biggest amounts of investigations that we do are criminal. And in some of that stuff that seems like it will be obviously criminal is it was missing. From the previous definitions. And that's. Most of the time it's going to sound horrendous to say, but. A lot of the images surround very, very young. Girls, you know, three and four year old girls that are right in front of. They're dressed, but they're in front of a male who's nude and his erect penis is right in front of the girl's mouth. And it's obvious that it's about to contact. What's about to happen. But that's a simulated oral contact is not covered in the bill or covered in the current law. And it's also sometimes from the camera angle. It looks like there's contact, but we couldn't swear there's contact. And so unless there's contact into the current definition, then it's kind of a legal loophole. And we were trying to close that this was part of. The last year, I think with different language. That this is the only part that didn't. What we really wanted. So that's it. We get a lot of these reported from cyber tips. And these cases are just exploding numbers. And the other trend is we're just seeing younger and younger. Children. Very disturbing trends. We saw this last year were. A market increase in infant and toddler sexual abuse. And with all sorts of distortion. This would obviously help. And Barbara. I ain't doing that. Good to see a commander. You may not remember. And I certainly don't. That's why I'm asking the question. Is there a difference in the language from last year. Compared to this year. And if you don't have that, that information is fine. I'm not sure Michelle well, but. I think David would have that information better than me. I believe there is a change in the language that we asked for this year. And that we made it very similar to the language that exists in New York state. Because they've already been a tested law. Oh, David can speak a lot more intelligently. Right. Okay. More on a personal note. I got an email from my son this morning in the headline. It was him and his team that former Seattle Seahawk security manager charred with possession of child pornography. You know, thought he was talking to a 13 year old 25,000 images. And I mean, you know, probably the same old same old as far as stories go, but pretty, pretty high, high profile bust out in Seattle. Unfortunately, it's really hard to this goes through all walks of life. We've arrested police officers, teachers. You know, very prominent people all the way down to the, you know, unemployed or homeless people on the free government provided phones. Which is obviously not my music case, but. But yeah, so there's no predictor on who's going to be involved. Right. Yeah. Thank you. Barbara, do you have a question for Matt or okay, great. And then we'll turn to Michelle. Thank you. So Matt, I forget from last year. I remember the issue that you presented us with, but we're, are you able to not charge that person with anything serious? Like you can charge them with. I don't know. I don't know. I don't know. I don't know. I don't know. I don't know. I don't know if there are mentors, but not sort of assault. So if they're not the person depicted in the image, right? They have a. Image of somebody else. I mean, they've not shown it to a kid and they've just possess it themselves. There would be nothing. That I know. It would be a loophole. I don't think anybody intended that. Not to set the definition of child pornography. I could tell you there's very few pictures to look at. There's a lot of them out there. And. Again, I think it's just a legal loophole. For that scenario, there's nothing else you can charge. So people. People have walked away when that's like you. Well, our fear is that that can happen. Okay. I've been pretty lucky that we've been able to. You know, if, if I get a cyber tip and that's the only image, you can't accept that cyber tip for investigation. So in that regard, yes, people have gotten the way with it. I can't, I have to be able to get a subpoena for their IP address. Right. The first leg of developing somebody is, I have to say a crime has been committed. Now I can't say that a Vermont crime has been committed. That doesn't. So in that case, yes, people have done. Once we've gotten to the search warrant, please. Obviously we've had other images. That have got us. It's that seems incredibly compelling as a rationale for the spell. So I just wanted to make sure I understood. Thank you. Thank you. Great. Okay. Well, thank you. And certainly we can hear from you again after a year from, from Michelle if there are other questions. Okay, welcome. Good afternoon, Michelle. Yeah. Sorry, I'm a few minutes late. Juggling the kids picking them up at school and, you know, trying to work from home, all of that sort of stuff. So. So I'm going to. Just kind of set you up for the discussion with the witnesses and give you a little bit of foundation. So those of you who were on the committee last year already have some familiarity with it, but I know we've got some new folks. And, and so I want to make sure everybody can feel like they aren't kind of just dropped in in the middle of the conversation without the, without the information that they need really to be considering the policy differences because. Yeah. While this is a simple bill in the sense that it is very short. There's not a lot of language there. It's very complex from a constitutional standpoint. And there's a lot of. Issues in there for you to, to discuss into way. And the two witnesses. I have differing viewpoints on that. And so what I want to do is kind of set you up. I want to make sure that you can hear from the witnesses and then when you circle back around for, for committee discussion, I can join you for that. And we can discuss the witness testimony as well. So I am going to, if it's okay with you, I'm going to share the screen. Oh, I need to be a mic. I need to have the ability to share my screen. You're good now. Okay. Thank you. I'm getting a little bit of something looking. I'm going to start with this. This looks a little. Different than. Well, let's start with this. So for those of you for the newer folks. I'll just mention. So I, I use, I have the green books. I can go to those all the time, but I use our online statutes directory all the time when I'm looking at things. And so I just wanted to show you where it is on here to give us a little bit of information. So I'm going to show you the chapter overall, but I wanted you to know where it is. So if you want to take a look at that when you have time. So we're working in title 13. So that's your, your criminal title. We're going to go down to chapter 64. And chapter 64 is the chapter on sexual exploitation of children. And so as you guys were discussing, there was legislation that passed last year that. The law was passed. And that's the chapter. What's contained in this chapter. You see the different offenses. So you start out and you have the, I'm sorry. I don't mean to, but I don't think that's what's on the screen right now. I think we're looking at a little background info for discussion of H one. H 18. Did you mean to. Thank you. Thank you, Mark. I didn't mean to interrupt, but, but. No, thank you. I don't. You might have to unshare and then reshare to. Yeah. Sorry about that. Let's see, stop share. Let me try again. Still getting the same one I was on. You got the right place now. You're doing it. Okay. All right. Sorry about that. So, uh, so looking at chapter 64. And you'll see, and there's the, we have definitions. Um, and the different statutes with regard to the different criminal offenses that are under this chapter. So this used to be, we think of this chapter as tends to be, um, around the issue of what we were formerly calling child pornography, but which we now try to use the term, uh, uh, child sexual abuse materials, because pornography is something that indicates that there is consent, um, involved between for the making of the, of the pornography. And obviously there is no consent involved. And we're talking about children. And so we talk about sexual abuse, child sexual abuse materials. And, um, and so this is like, if you look at this, this was amended last year as part of the legislation that you passed. And so I just thought I'd bring up, uh, just for a little context, a little summary of what you passed last year for anybody who might have forgotten. Um, so there, they were kind of small changes, but substantive. And Matt probably talked to you about some of those. So, um, it expanded the definition of sexual conduct and sexual performance, um, to include conduct by, with or on a child. Um, it also updated, uh, the definitions to include distribution through file sharing and peer to peer networks. Um, there was the name change as I mentioned. Um, and, uh, some additions with regard to knowingly accessing, um, that type of material with the intent to view. Um, and so that is now prohibited. And then the last part, which is why we're circling back around to this issue is it required the attorney general, uh, working with the defender general's office and the department of state's attorneys and sheriffs to look at this issue of simulated sexual conduct. Um, uh, for the purpose of developing a clear, narrowly tailored legislative proposal that prohibits the conduct while ensuring that it's not sweeping in a substantial amount of constitutionally protected speech inadvertently. So I just wanted to kind of set you up. For, um, for that, um, something just I want to mention, and I don't think we need to go too much into it. For our discussions today, but it'll probably come up is that when we are talking about this chapter, we're talking about these offenses as they apply to an actual child. So, um, and the language in the individual statutes and the offenses because of the definition of, of child that's used in 28, 21, it's, we're talking about a child under the age of 16. So none of these offenses would be applying to a, um, we've talked about a simulate as we were talking about simulations. It's not anime or, you know, all the different technology that can be used to give the appearance of a child, but that it's, um, but it's actually not an actual real life child in that. So I just want to kind of get that out there at the beginning because that is an important distinction. Um, and there was a case a number of years ago, um, that had to do with that in it. And, uh, and this, there are not. Well, there are not protections for child sex abuse materials. Um, that's not the case necessarily for talking about, there wasn't an actual child involved, but there was a simulation pretending to be a child. So, um, so I wanted to mention that, uh, Can I ask a question about that? Sure. Um, when you, well, when you get to the language, well, I guess you're getting there right now. I just didn't understand how that point you just made that it has to be an actual child. Where does, where do I see that in this language? Right. And, and that's, you know, and I debated with AG's office a little bit about whether I need to try to bring it in. But if, if it's, you look at, it's like, you have to look at the context of the existing law and the statutory scheme. So if we, if we look at, um, the definition in 28 21 here and you see child means any person under 16 years of age. Okay. Then let's go over and let's. You know, pick like, uh, possession of child. So, um, and so when you see the word child in the statutes, you're talking about an actual child under the age of 16. You're not, you're not, it's not implicating that it's, uh, that it's anything other than that. So I think the existing statutory scheme is, is clear that it's not a, uh, a drawing of a child, a, uh, um, things like that. Does that make sense? Yeah. So, so if they wanted to go further than that, they would have to be explicit that they were looking at. Anime, as you said, or something that did not involve an actual child that would have to be explicit. Right. Right. So I, yes. Or a scheme. Right. Yep. Thanks. Yeah. So, but I did, I, your point is well taken because I did consider about whether or not in the language in the bill, I wanted to say something about actual child, but it's, it's already implicit within the existing statute. So in my opinion. Um, so I'm going to turn and out to the, the language of, um, um, H 18 and look at that. And then I'm going to move on to that other little document just with some, a little bit of background information and, um, and set you up for, for the witnesses. So, um, so if you look at the bill, you look at, uh, page one, section one, and you'll see this definition section that we were just taking a look at. And so under the definition of sexual conduct, you have, you have this long laundry list there right now for what we call sexual conduct, sexual conduct. Um, and so you can take a look at those things. And, um, and then on page two, you have this edition of the language online nine in subdivision G, any simulation of the conduct described above. So it may not actually be, um, you know, one of those things, it may not actually be a simulation of one of those things, then you'll see right below that the definition of simulation means the explicit depiction of any conduct described up above that creates the appearance of such conduct. And that exhibits the uncovered portion of the breast genitals or buttocks. And, uh, I can't remember if it was Tom, somebody asked the question of, uh, whether, like, whether the gender gender was an issue that you talked about in, in this version versus last year. Um, and again, my recollection was that, you know, last year was such a weird time of when we discussed stuff and then went back to stuff in the fall, but was that we didn't really discuss the simulation issue. At either much or at all in the house and that it was raised more and discussed certainly in the Senate. And so when it came back to y'all, there, you know, So you guys really didn't get into the nuts and bolts and have the constitutional debate around simulation that the Senate had. Something that is different from last year before is that there's the added requirement that the simulation exhibits the uncovered portion of the brush genitals or buttocks. And that is something that was added to narrow the scope. So because what you're trying to do is you are trying to prohibit a certain specific conduct as it applies to children. But you also want to limit any constitutionally protected speech that you might unintentionally sweep in. And so the addition of the nudity part was one of the things that the Attorney General's office recommended be added to narrow the scope. Excuse me. Tom, you have a question. Yes, thank you. And it was me, Michelle. So on page two, line 12, number seven, the simulation. So the commander was describing simulation to us. I'm going to guess before you got on. And the description that he used was an erection close to the mouth of a child, but not touching. Does that take that scenario out when? No, it's covered because it would be exposing the genitals. Oh, OK. I was applying that to the juvenile. No, doesn't say whose genitals they have to be. Any genitals in the picture, then that simulation is covered. OK, yeah, OK. Thank you. Sure. OK. So we're going to do a little con law 101 and talk a little bit about free speech. And I know this will be very familiar to most of you, maybe less so to others. But I just wanted to kind of set you up and talk a little bit about free speech protections. I think everybody knows we have the First Amendment to the US Constitution, the Bill of Rights. And you'll see there. So Congress shall make no law respecting and establish a religion or prohibiting the free exercise thereof or bridging the freedom of speech. And so you have that in the US Constitution. In the Vermont Constitution, in Article 3 in Chapter 1, you have something similar that protects speech. So that the people have a right to freedom of speech and of writing and publishing their sentiments concerning the transactions of government and therefore the freedom of the press ought not to be restrained. So I just wanted to mention that when we're talking about these provisions, they guarantee free and public expression of opinions without censorship and interference or restraint by the government. We're talking about government action. So I just wanted to mention that because I know just with everything going on in the world right now and Twitter and all kinds of other stuff and people are talking more about freedom of speech, things like that, these are protections from government interference with freedom of speech. So the government can't restrict you. But constitutional rights, I think as we know, they're not absolute. It's not like you have a right to free speech, which means you can say anything any time you want, no matter the content or the context. Government does regularly pass laws that in myriad ways make little infringements on these constitutional rights. And that happens all the time. And so the questions considered are what type of speech is it? The degree of the government infringement on the speech and the government's reason for making that infringement on the speech. So generally, speech is protected under the First Amendment unless it falls into a narrow category of exceptions. And I think there's probably lots more exceptions and fees, but I just listed some that don't get First Amendment protection. So things like obscenity, fighting words, incitement, threats, and child sex abuse materials are not afforded First Amendment protections. So you think, well, then why do we even need to talk about the First Amendment? Because we're dealing with a bill that is talking specifically about child sexual abuse materials. Well, we need to be careful that when you are drafting these laws, that you don't unintentionally draft them in a way that is so broad that you sweep in constitutionally protected material or that if you do sweep in any potential constitutionally protected material, that it's having as little impact as possible and that there's a really, really good argument from the state about why you have to pass this law. What is the government's interest? So the character and the content of the speech determines what level of scrutiny the court is going to use to ascertain whether or not the government has enacted a law that impermissibly infringes on a person's free speech rights. So an example of that is political speech is afforded greater protection than commercial speech. And so they would use a different standard to analyze a challenge. And then the last thing that I just wanted to mention is this idea of the difference between a facial challenge versus an as applied challenge. And a facial challenge means that someone is challenging the law and saying that as written, basically the law on its face, at all times in all scenarios, is unconstitutional. And therefore it invalidates the law for everybody. And as applied challenge means that the law is unconstitutional on a certain set of facts. So as applied to a particular case or circumstances. And in that scenario, you can have a law and you could say, and the court can say, well, it has all these constitutional readings and applications, but it can't be used in this particular way. And I bring that up because I know that the debate between the Attorney General's Office and the Defender General's Office as it was last year was whether or not the language and by including simulated conduct, could you unintentionally sweep in certain movies or things like that that aren't intended to be a child sexual abuse materials. It might be something that's showing on Netflix or something like that that is trying to convey something and has artistic value or things like that. And so they're gonna probably talk about that. And then we'll circle back around and have a bigger discussion about that. But I did wanna say that just because it might implicate potentially something that might have some protections and is not considered to be child sexual abuse material, that doesn't mean that the whole law falls and that the whole law is out. So there are a number of states. I think the vast majority of states have some version of this law with regard to simulated conduct, as well as at the federal level. So you're not necessarily treading new ground here. So we can look to those other states and I think looking at there is- Michelle, can you repeat that? I guess go back about 30 seconds when you started talking about other states and challenges, I think you said. Yeah, I think there's 44 states that have something similar. So the vast majority of states are something. And there is a case that I'm sure the witnesses will probably discuss the Ferber case out of New York that addressed these issues. And so this is not new territory, I would just say. Thank you. Martin, did you or? Yeah, yeah, I had a quick question. So are we gonna hear your opinion after the folks? Sure, or I can just cut to the chase and tell you, I think it's fine. Speak, speak. I mean, so all right, when you say I think it's fine, I assume that you mean on the facial challenge because who knows? Yeah, I think I can certainly see how there could be an as-apply challenge by if we go back and we look at that language. So if there was a simulated, I mean, I don't know that the addition, I would have to hear maybe from the Defender General's office because I'm learning all the time, just as like you guys are when we hear and we have experts come in that really practice in these areas and stuff. So maybe there could be a situation where there was like some kind of blockbuster movie that had a simulation that wouldn't be something that you're necessarily targeting with this law. And so maybe somebody could have an as-apply challenge, but I think with the addition of the breast genitals or buttocks, and that means that you basically, the actor would have to be 15 years or younger and simulated in conduct and there would have to be some nudity involved. And so I think that the addition of that language there at the end really drops the chances that anything could potentially fall into that category that is stuff that you didn't intend. But if they did challenge, I mean, first of all, you'd have to have a prosecutor decide to bring the case, which I know that there was that, I don't know what's come of it, but there was that prosecutor in Texas at the end of last year who brought one against like Netflix, I think, or somebody for some movie. I don't have to Google that, but I do remember when it came up thinking, oh, on point for this bill. And I forgot about it until then. But you'd have to have a prosecutor decide they're gonna charge it and then whoever's charged can bring this up as a defense and say, as applied to us, we clearly have, we don't fall into the category of a child sexual abuse materials or we shouldn't fall under that. And this is too broad. There's something called the overbreath doctrine, which means that you have, you're sweeping in too much constitutionally protected material and the law isn't drawn narrowly enough to really get at the prohibited conduct that doesn't have the protections. So I'm comfortable from a constitutional legal standpoint with this language. And so, yeah. So just to follow, I mean, so the concern, if there is a concern, isn't just whether somebody would be prosecuted or not and whether the prosecutor decides to bring a case. Being a prior restraint kind of stuff. Yeah, prior restraint or even, yeah, suppressing speech. That's, yeah, maybe it's prior restraint is the concept I'm thinking about. So isn't that a lens for which we should look at this as well? Sure, yeah, I think so. You can think about that and whether or not that this would mean, how, I mean, I hadn't really, I mean, I thought about it a little bit, but it's like, the question is, is how much does it really influence on someone's ability to communicate freely under this, right? So I think you could still probably easily make the movie, have a simulation, but maybe you don't have any nudity in it. Or you have, like there's certain guardrails there that you could still engage in communicating your message or art or whatever, but not necessarily specifically like under subdivision seven. So, but that is an excellent point. Yeah, there, I can't see everybody's hands. So if somebody's hand is up and I'm missing, oh, Tom, I see yours, but also anybody else, if I don't call on you, please, please jump in. Tom, go ahead. Yep, thank you. So Michelle, it's been upheld. Has it been challenged in those 44 states? Yeah, there's, the Ferber case is the one that they're gonna, that I think the witnesses are gonna kind of dig in more. I'm trying not to like scoop David, because he wrote this demo. No, I appreciate that. And he, I think we'll discuss some of the case law and the cases that have applicability. And then I'm happy to circle back around. Okay, maybe I'll save some for him, but can we go back to your constitutional page? Sure. And so can you just, I guess in more late terms, describe or tell us what facial challenges versus as applied again. I know it's written there pretty simple, but I guess I need it just a little simpler. Sure, so a facial challenge is like somebody saying, I'm just gonna look at this, I'm gonna look at this law right here and just looking at it here, there's, it's just straight up facially unconstitutional. Like there's not any constitutional applications here. However you would use this, it's so sweeping and infringes so dramatically on free speech rights that as a whole, it is unconstitutional and cannot be upheld. And then the as applied would be, I think is what we're talking about here in this particular case, which is like, so you read it and the issue is if you look at this language and you say, well, are there some situations? Clearly there are lots of situations where this would apply and prohibiting it would be constitutional, right? So in cases of child sexual abuse material, that's what the goal is, right? And so as applied to child sexual abuse materials, we know there's no protection there and it's constitutional to do this. However, let's say you had somebody like the Texas prosecutor, and you had somebody here in Vermont that wanted to do that and they look at this language and they say, well, that movie, you can see just a little bit of the breast and the 15 year olds are making out and that kind of stuff and they say, well, I think it violates this. The person could, so if the person was prosecuted, they could bring up and say, well, I think as applied to me in this particular instance in case, it's unconstitutional. It may be constitutional as applied to the stuff they were taking off of Horn Hub and things like that and things that everybody clearly agrees is child sexual abuse materials, but it's not constitutional as applied to me in my artsy movie that I made on a $5 million budget and shows on Netflix and Amazon Prime. So it's the difference between the whole universe and the whole law is out versus one way in which the law is utilized and applied. Okay, great, thank you. And the thing that's important there is because when you have as applied challenge, it doesn't mean that the whole law has to go down. If it's a facial challenge, the whole law goes down because there's no, you don't have any valid constitutional uses for that statute. If it's an as applied, sometimes if it's a certain provision, they'll strike down a certain provision or they'll just say, this law can't be used to go after that type of conduct because it doesn't fit because they have constitutional rights that are not afforded if it's child sexual abuse material. Okay, and one more that I think I have for you. So can you go back to the constitutional page again and up at the top of the page where you had article one and I don't, first amendment and I don't remember what article 13. So I know with some amendments and some articles in the Vermont Constitution, they say basically the same thing, but I know one in Vermont that the language in an article compared to, well, it's article 16 compared to the second amendment. The way that I understand it is it's a lot stronger wording in Vermont as far as freedoms go. And I didn't know what the language between these two, if there was any big differences in the way that it's worded. Right, that's a great question, Tom. And right, there are differences between the constitution's on certain issues. Another example is with regard to search and seizure and Vermont, the Vermont Constitution has been interpreted to be more protective of people's rights around issues of search and seizure than the fourth amendment of the US Constitution. So there are differences. I had thought about this and it's something that I wanted to look up and look at the case law. My recollection from, I don't work on these first amendment issues that often, but it was that there's not any large distinction between the two, but I can take a look at that and the witnesses may have to be able to chime in on that as well. Okay, great, thank you. Anybody else? Okay, all right, well, that's it for me right now, but I'm still here, so we need to hear from the witnesses. Great, thank you, I appreciate that, Michelle. So I'm looking at our time and I said that we'd be taking a break after an hour, about five minutes away from that. So I just wanna ask, Matt, if you wanted to come back and testify more at this point or if you're all set, then give you the opportunity to weigh in now if you did have more to add. I think most of it is a legal discussion. However, I would like to say, on the practicality of applying this in the practical world, this is what I do every day. And the movie that they were talking about, the Netflix movie was actually a movie called Cuties. I don't know if you've heard of it. And as this law is written, we would not be able to indict Netflix as Texas did and doubt they'll be successful in their prosecution there, if you think. But as this law is written, the movie Cuties, which I've used because we've got more complaints on it, and it would not meet the definition that's defined here. So it would still be completely legal to process Cuties in the long after this was passed. And the same is true of all the other, the ones that I know of, people bring up like taxi driver, they still wouldn't be in violation of this statute as it's been rewritten. Thank you. The only other thing I would say is, these are the best solution we can come up with for the real problem of people possessing this material. So it's definitely a needed change. Thanks for your time. Thank you. Thank you very much. I see Kate's hand. Yeah, thanks. Just Matthew, before you go, I had a quick question related to the reading of the bill and I don't have the language right in front of me. I can't navigate Zoom well enough right now to hold two screens at once, but I'm just curious, part of what you're talking about are these loopholes that make your job harder. And just noticing that section of the bill that was added in terms of explicitly stating that you have to be able to see parts of the body in order for this to be a particular kind of offense. And I'm just curious in your world, if that gives you any concern or pause, if you feel like you would encounter cases where that specific section would get in the way of you being able to move forward? No, I believe as written, this would be fine for us. There's always gonna be those cases that are on the edge that you can't think of right now that pop up and they're gonna be so few and far between. These are things that I see a lot of that are loopholes right now and that's what we're trying to cover. There'll always be some on the fringe area that makes us concerned that we wouldn't be able to follow up on. And I don't think it's possible to write in a scenario for everything, this as written would be fantastic and for the ICANN. Thank you. Thank you. Think any other hands? Okay, so let's take a break for about 15 minutes and then we'll come back for another 45 minutes and we'll start with the Attorney General's office. And we may not get through all the witnesses today, but this is also on our agenda for tomorrow morning after the floor. And I imagine into next week or later as well. So, okay, so let's take a break please. So welcome back and we're gonna continue our witness testimony and we will now hear from the Attorney General's office. David, welcome. Thank you, Madam Chair and thanks to the committee for taking up this bill. As you heard a few minutes ago, it is of significant interest to our ICAC task force and we certainly appreciate you taking the time to work through this. It does have some challenging constitutional discussions and this committee did not, I don't believe, have the benefit of a sort of preview of those from last summer, which we had in the other Judiciary Committee, but I'm hopeful that all the parties in this are well-prepared and can give you a clear overview of what's going on. And the record, I don't think I identified myself, David Scherer with the Attorney General's office. So I did write up a memo for the Joint Justice Oversight Committee at the request of the legislature last year and I distributed that to, I just believe it's up on the Judiciary Committee's website and hopefully you have had a chance to, at least you may not have had a chance to review it in full but at least have it in front of you. And my plan for today is to do a brief overview of that because it gives you the broad outline of the constitutionality issues and I wanna thank Michelle for doing a great job, Attorney Childs for doing a great job of the conceptual overview around the constitutional issues. I think those are very helpful beginning to this issue. So the change that we're asking for, I wanna say up front, this is not legal adventurism. We are not going out on a limb here. There are around 44 states and the federal government and the District of Columbia, all of which have the provision that we're requesting regarding simulated conduct. And as you'll see as I go through the series of cases the U.S. Supreme Court has in fact held that the type of change we're asking for is not protected by the First Amendment and therefore it is allowable to criminalize it. And the Defender General's office and our office had a long back and forth on this last year and I know that Deputy Defender General Paul will be getting his side of it. And I may say a few comments that anticipate his arguments but I'm sure that he will defend himself and his position very adequately after I do. And I hope not to misrepresent anything that he would say. I will start with an overview of, I'm gonna skip through the introductory part of my memo and sort of start because that's just the language that we're requesting and Michelle, Attorney Child's already discussed a lot of that with you. I'm gonna just go through the precedent that is relevant to this particular case. And I should say we're actually pretty lucky because we have U.S. Supreme Court cases that are precisely on point. Oftentimes in the law we have to reason by analogy. We have to look at cases that are similar to the situation we're talking about and then make an assessment about whether the court will apply similar situations or similar facts or similar concepts to the case that we're dealing with. Here in fact we have a series of cases that increasingly precisely defines the legality and constitutionality of the provisions we're looking at. I will summarize the rule by basically it says that a depiction of sexual conduct that was produced using an actual child. David, are you reading from your memo? Where is it? I am at the moment reading from my memo. It is on, I believe, page four under subsection A, the legal rule summarized. Great, thank you. And I'm going to sort of go, I'm mostly not going to read from the memo. I'm just gonna try to summarize in a way that to the best of my abilities. But there will be moments when I read from it and that's where I am right now that's under the legal rule summarized subsection A. The basic rule, if you were to summarize the case law, sort of scrunch it together and say, this is what it stands for, is that a depiction of sexual conduct that was produced using an actual child involved in the conduct, whether that conduct was simulated or actual is not protected speech and it may be criminalized. However, and this is an important distinction here, depictions of child sexual abuse that were not produced using an actual child. So that means virtual depictions, drawings, computer generated images, things like that. Those are protected speech. And I want to be clear that we are not proposing here to outlaw that because that would in fact be unconstitutional under Supreme Court precedent. What we are proposing to do is say that depictions that were created using an actual child, meaning a human being who is under the age of 16, is those simulations are, we're saying that those are criminalized and we believe that that's squarely within the constitutional precedence. And as Attorney Chiles alluded to, there's a key case here that sort of is the foundation for a lot of our thinking about child sexual abuse materials or I will sometimes use the term child pornography which we no longer use generally, but because the case law still uses it, it will be easier for me to just reference that and I think we'll be clear for you to follow if I reference that phrase. The Furber, New York versus Furber case which is really the sort of foundational case around a child sexual abuse material child pornography is something I'm gonna cover now. And there's also two subsequent cases that are highly relevant to this. And that I want to cover and give a little overview about the meaning and how together these cases create the rule that I just described. So the Furber case was the case that basically defined or I should say held that child sexual abuse materials, child pornography are not protected by the First Amendment and in fact have lower protections than so-called obscene material which is something that is frankly rarely litigated anymore but earlier Supreme Court cases had said that obscenity is not protected but they set a pretty high standard or set a standard that you had to reach before materials were considered to be obscene. And Furber basically says if you have materials that were produced using a child to depict sexual conduct in other words, child pornography that is not protected by the First Amendment and it doesn't have to reach the sort of obscenity definition that had earlier been created by the US Supreme Court. And the reason they said that was there's this grave harm that we're trying to prevent and that grave harm is the sort of psychological and physical damage that is done to a child in the production of these materials. And Furber made a couple of and I should say we modeled our proposal in this law after New York's law which very similarly to our proposal anyway outlawed actual or simulated sexual intercourse and it noted that the simulation in their definition of simulation had to involve nudity of the type that we have included as defined the same way that we defined it in this proposal. And that as long as it and again there was this sort of implication that it does require an actual child to be involved and Furber actually considers that issue. It's not the heart of their, well let me say two things. One, Furber does very clearly understand, the court understands that it is allowing a prohibition on simulated sexual conduct explicitly cites the New York statute several times in its opinion and notes that it includes simulated sexual conduct and it says we find that this to be a constitutionally permissible prohibition that this is not protected by the First Amendment. And Furber even contemplates the notion that simulations that do not involve an actual child might be permissible because we are outside the sort of policy realm that they're trying to carve out. We're trying to say, look, these things cause great damage. We're not going to allow the production of these materials because they're so psychologically damaging to children but simulations that do not involve an actual child could potentially be permissible and Furber doesn't go into that in great detail but it's clear that the court has already started thinking about that distinction and they are very aware of the fact that they are in fact outlawing simulated material in addition to actual sexual conduct or sexual intercourse. And the court says, and I'm gonna refer back to some of the concepts attorney child spoke about earlier the court basically says, look, this is permissible because of the policy reasons we talked about needing to protect children and it is not overbroad, in other words, it does not sweep in too much conduct that is protected by the First Amendment. It sort of acknowledges in the opinion that it is as attorney child acknowledged here, it is possible that there could be a case brought or there could be a challenge brought in a particular circumstance that there's an as applied challenge to a particular set of facts but it says that because the broad sweep of what's being outlawed here is a permissible sweep this is not overbroad and does not violate the First Amendment. So then we get a, and that's a summary of Furber then we move on to Ashcroft which is another Ashcroft, excuse me, Ashcroft versus the Free Speech Coalition which is another key case in the genesis of the law here. And Ashcroft makes an important distinction which says that if there are depictions of child sexual abuse that were not produced using an actual child. In other words, things like drawings, things like computer animations, computer simulations, things like that, those are protected by the First Amendment and they cannot be, they do not have the same sort of carve out that Furber created for child pornography, for child sexual abuse materials. And the reason for that Ashcroft explains is because unlike in Furber, we are not talking about materials that required for their production the harm of children. That was a convoluted sentence I just said but let me try and state that a little more plainly. The materials we're talking about, you're talking about a simulation, you're talking about a drawing, no child was necessary to create that. And so the First Amendment or I should say the policy concern that underlay Furber is not present because there is not a child being harmed. So Ashcroft says, look, if there's no child being harmed then that does get the protection of the First Amendment and you cannot outlaw that. We were very aware of that in designing our proposal for you today. And as Attorney Child explained, the proposal that we have does not permit the, I should say does not criminalize materials that are not produced using an actual child. And Michelle explained that when you look at our current statutory scheme, the only instances in which it's applicable even now before our proposed amendment but even now the only instances in which it's applicable are ones where there is an actual child involved. So we are outside of, we are not invading Ashcroft's territory. We're outside of that. We're saying we are not trying to outlaw simulations that do not involve an actual child. My understanding of part of the Defender General's argument when we talked about this before is that Ashcroft outlaws any simulation. And I think that that is not the case. And I will stop by Marshall shaking his head. Deputy Defender Paul shaking his head. I will stop characterizing his argument and let him make it himself. But I will say that we think that there is, that's a key distinction. And it's not one that I should say the key distinction is the distinction between simulations that an actual, where an actual child is involved in the production, simulations where there is not an actual child involved in production. And you may outlaw the first, you may not outlaw the second. And we are not outlawing the second, which is instances where there's a simulation but no actual child is involved in its production. The final, and I should say again, sort of without getting into it in detail, Ashcroft does acknowledge the difference between simulations involving a child and simulations that don't. The final case I'll mention is one that. I just wanna check in with committee members to make sure everybody is following, see if anybody else needs David to repeat anything or you're all good? Okay, all right, thank you, David. Go ahead. Thank you, Chair Grav. This stuff can be confusing and I apologize for that. I'll do the best I can to keep it simple. And I should say I'm getting to the close of my summary here, which is the USB Williams. Which addresses this issue as a piece of its case. It's not primarily focused on this issue, but it does make clear. It sort of closes the loop on this point that I've been driving towards, which is that there is a distinction. It's just that simulated sexual intercourse that does not involve, I should say the depiction. Let me be clear, we're talking about depictions here. The depiction of simulated sexual intercourse that does not involve an actual child is constitutionally protected. But simulations that do not involve, sorry, simulations that do not involve, let me start that whole, let me rewind that back and start that whole sentence again because I'm afraid I started to say it backwards and I don't wanna confuse the issue. Williams sort of summarizes the point that I've been driving towards, which is that a visual depiction that involves an actual child, that is permissible to outlaw, that is outside of the First Amendment. And Ashka and sorry, USB Williams sort of says, look, we're clarifying that that is the case. You can outlaw simulated depictions of simulated sexual intercourse as long as the production of them involves actual children. And again, that's what we're doing here. Simulated cases that do not involve, simulated depictions that do not involve an actual child are again protected by the First Amendment and that is not what we're doing here. And so that's an overview. And again, this stuff is not, it's not simple. This is a big constitutional issue with some complex concepts. That being said, I don't think we're close to the line here. I think that this is very plainly constitutional. Federal law does exactly what we are proposing to do. The US Supreme Court had the opportunity, in some of these cases, they probably could have addressed that aspect of the federal law and decided that it was unconstitutional. They did not. And especially I should say the Ashcroft case, which could have presented that question to the court could have chosen to consider that. They did not and they did not rule that simulations involving actual children are protected by the First Amendment. They declined to do that. And I think that we are very safely within that, which is permissible under the Constitution. And again, the other thing I'll say is we are fortunate here, oftentimes, I find this a useful way to think about this particular line of cases and the statute we're trying to pass into law here, which is that sometimes we do have to reason by analogy as lawyers and as legislators thinking about the law. We don't have to do that here. We have a line of cases that is exactly about the law that we are trying to pass. And I think that's very helpful and to me very clarifying in how we think about it. So that was my summary. I will wrap it up. I'm happy to take questions and fire away. I see Barbara and then Tom. Thank you, David. That was interesting. I've got to say for those of us in the room that had young children years ago, every time we talked about Ferber, I kept thinking about the baby sleeping method, which is called Ferberizing. So I had to stop making that association. But I'm curious and maybe this is like getting too kind of in the weeds. I'm wondering because I could picture not having a real child but modeling a real child to make the plastic dummy or the anime, et cetera, or putting somebody, a kid's face on it. And again, if the kid doesn't see the movie, which they obviously shouldn't be, it wouldn't necessarily be harm, but the modeling part, they may be. And again, maybe that's just like too weird a nuance and we shouldn't worry about that. But I just found myself going to that sort of middle spot that could get murky. Yeah, a couple of thoughts on that. One is that, fair question, and frankly, arguments along those lines were in the government's briefing. I'm remembering correctly in the government's briefing and one of the cases that I'm thinking of, I think it was Ashcroft. And basically Ashcroft said, no, look, the policy issue that we are concerned about is the harm that results to children in the production of these materials. And so other types of harm, like the ones that you are talking about are outside of that policy consideration. And for that reason, they were not willing to sort of extend what could be outlawed to include simulations that don't involve the production of which did not involve actual children. So I think you raise a fair question, a fair point of concern, but it's one that the US Supreme Court said, no, this lies outside of our policy concern here. We are gonna keep a narrow view of what can be outside of First Amendment protection and we're not, the only policy consideration we're thinking about is what happens in the production of these materials. And probably there's another law that would protect somebody's face from being used unless they're a famous person, but we don't need that here. That's right. And I will also say, sort of to help conceptualize what we're thinking about here from the other side, from the sort of side of why things can be useful. There are things that we, there are uses that we don't wanna outlaw. We don't wanna outlaw medical textbooks, for example, that depict something those are, I think, would be broadly agreed to be perfectly permissible places where you could make depictions. And there needs to be room to do that, educate doctors and find cures. And we can do that by doing things like drawings and things like that. So there, so Ashcroft was thinking about, the Ashcroft case was thinking about those other reasonable uses of simulated depictions where it's not sort of for a prurient sexual interest, but for a genuine potentially educational interest to illustrate the example I was just mentioning. Thank you. Tom. Yeah, thank you. Thank you, David. Just some clarification, I guess, for me. Furber, did you say that in the Furber decision that it was determined that some simulated could be permissible? Was it narrower? Was it, I guess it was the Furber decision narrower than the Ashcroft decision? I would say the Ashcroft decision narrows the Furber decision or at least makes explicit, makes very explicit that there's a certain simulations that cannot, that do receive first amendment protection. Okay, I think I said it backwards. Yeah, it gets very confusing very quickly. And as you saw from my presentation, I stumble on it too sometimes. That being said, Furber does sort of contemplate the idea that some simulations would be permissible. And they even state that, you know, they give an example where they're like, you know, if there's some sort of artistic interest involved or something like that, where the sort of idea of a minor being involved in sexual conduct is something that needs to be, that is reasonable to be portrayed or there's some sort of other genuine societal value to that. Furber says you could use a person over the statutory age who may appear to be under the statutory age. And Furber says that that could be permissible. I mean, frankly Ashcroft clarifies that that would in fact be permissible. Okay. So Furber does acknowledge this difference between the simulation involving an actual child and simulations that don't involve an actual child. Okay, even though I said it wrong, I think I did understand it. And the part with the breast genitals and buttocks, you said New York has that in there. It does, yes. And I'm gonna assume other, the other 43 jurisdictions might not or some might not or some do. You assume correctly, not all of the other jurisdictions have that limitation on it. We thought it was a reasonable limitation. We thought we did it to be very safe constitutionally, knowing that the US Supreme Court had ruled on this exact statutory scheme in the New York v. Furber case. And we also, it's sort of responsive to some of the defender general's arguments from earlier from last year regarding practical examples where there might be underage people being portrayed, but there was no nudity in those. And arguably the sort of proposal we came out of last year which did not have that limitation, it could have encompassed some of those depictions which were sort of depictions that I think would broadly be considered of artistic value or artistic merit. And we wanted to make sure we weren't sweeping those in. And so we chose to take the New York statute for that reason as well. Okay, I'm not gonna say this one exactly. So I guess in Vermont law now and with this, the only way I can think to put it is, where does Qtees fall into this? So Qtees would not, I've also watched Qtees because it became a subject of some discussion and controversy in this exact realm. And this statute simply wouldn't apply to Qtees as Commander Raymond mentioned earlier, I think quite correctly. This nudity requirements would mean that Qtees, sorry, simply couldn't be brought, simply couldn't be prosecuted because there is not the nudity of the kind that is defined in this statute. And so it could not be prosecuted under this law. All right, okay. All right, be interested to hear Marshall, I guess. But thank you, David. Thank you. That's seeing any other hands. Great. David, are you all set? I'm all set. Thank you very much. Well, thank you. Okay, great. So Marshall, we have 15 minutes left. So if you don't finish or, certainly we're gonna come back to this. And some of us have a meeting afterwards. So that's why we have a hard stop, but welcome. Thank you. So just to begin, because I don't think I've had a chance to introduce myself to the new committee, I am Marshall Paul, I'm the Deputy Defender General and the Chief Juvenile Defender. So I think that my boss, Matt Valerio, has been in and introduced himself to you. I am, I don't wanna say, Matt's my boss, let's put it that way. So me and Matt work together. And sometimes you'll see me, sometimes you'll see Matt. So on this issue, I think there's been, this law has come a long way from where it was when it was introduced, essentially a year ago. A year ago, the law that was introduced was entirely unconstitutional. This gets much closer, but it's not there. And some of what David has been saying, gives me a little pause because he's saying, you know, this is easy because we don't need to operate essentially by kind of implication and analogy. And then he goes on to apply analogy because what the proposal here does not do is it does not track exactly with the language that the US Supreme Court has said is okay. And I would have no problem if what we were in here looking at was the language that, for example, the US Supreme Court approved of in Williams. But that's not what we have here. And so I think that where we're at with this bill is that there's two primary problems. And I don't wanna go all the way back and get into fervor because I certainly disagree with David's interpretation of fervor. I mean, if you look at fervor, nobody challenged simulated child pornography in fervor. It's not even mentioned in the briefing to the extent that the court talks about it. We talk about it in dicta, which dicta meaning it's not part of the holding of the case. It didn't make any actual law around simulated child pornography. And then you get to Ashcroft v. Free Speech Coalition where the US Supreme Court said exactly what David said, which is, well, not quite exactly what David said. What they said in Ashcroft, they did not say you are allowed wholesale to criminalize the possession of simulated child pornography as long as it doesn't involve, or as long as it, see, I got mixed up the same way David did. In Ashcroft, what the Supreme Court said, what they didn't say is they didn't say you are allowed to criminalize the possession of simulated child pornography as long as it involves an actual child. What they said was the opposite. They said you're not allowed to criminalize the possession of child pornography if it does not involve a actual child. And there's a difference there. It's one thing for them to say it in the negative that doesn't necessarily imply that the positive is true and certainly not in some sort of wholesale sense. So then you get to the case that actually I think really does sort of draw the lines for this statute. And that's Williams. And Williams goes through and says, yes, you can in fact criminalize the possession of child pornography that involves, that simulated as long as it involves an actual child if it meets the following criteria. And then they go through and they lay out several criteria and they even the number of the paragraphs first, second, third, fourth. Now where David says that in Williams that simulated child pornography was not at the core or at the heart of the decision, I disagree. It absolutely was. The defendant in Williams raised two challenges to a federal statute, the Federal Protect Act. And the challenges they raised were one that it used a bad definition of because that was a statute that prohibited what they called the pandering, which essentially was the offering up or the offering to distribute of child pornography, including simulated child pornography. And the way that the defendant in that case challenged it was to challenge it on two particular grounds. One was that the definition of pandering was no good and the other was that it still ran afoul of Ashcroft that it still criminalized the possession of simulated child pornography that was actually protected. So it really, to me, that simulation issue was absolutely at the heart of the Williams decision. It was one of the two grounds that defendant Williams challenged the statute on. And it's one of the, you know, and the Supreme Court ruled on both of those grounds. So when they were talking, when the US Supreme Court was talking about why the statute in Williams, the federal statute was permissible, why it was okay, why it was not unconstitutional under the First Amendment, they ran through a number of factors and there's two that I think remain relevant to our discussion of this statute. And the first is one that's been touched on which is whether or not this statute actually explicitly says that an actual child must be involved. And, you know, when Attorney Childs was walking through the statute and talking about how this statute requires the involvement of an actual child rather than some simulation, she acknowledged that it was a little bit confusing. You essentially had to go from the definition statute to the statute that's actually prohibiting to the actual offense statute and then back to definition statute to sort of see the thread of how this proposed statute actually says that an actual child must be involved. That's a pretty complicated path. And at no point in that path does it actually say the words actual child, whereas what the U.S. Supreme Court has affirmed and said is okay, is a statute that uses the words visual depiction of an actual child. So I don't understand why we wouldn't use the language that the Supreme Court has already approved of and instead say what we're gonna do is something that we all acknowledge is kind of convoluted and never in any place, whether in the definition statutes or in the actual prohibition statutes, never uses the language actual child. When we have a case from the U.S. Supreme Court that says if you use the words visual depiction of an actual child, you're okay. So that's my first point is that we can get around that whole issue. The day I disagree that this statute is crystal clear that only actual children are subject to the prohibition. I think that it is less clear than that, but I think that even if it leaving that debate over how clear it actually is aside, why would we not just simply adopt the language that the Supreme Court has already approved of when it says exactly what we want it to say? So then the second issue, and I think this one's a little bit thornier, has to do with the intent. So in Williams, the U.S. Supreme Court said that it was okay to prohibit the possession of simulated child pornography that involved an actual child. And one of the key features of that statute that the Supreme Court pointed to and said made it okay to prohibit that was that there was both a subjective and an objective element of intent. And what that really means is that not only was the simulated depiction did the person who possessed it or the person who was trying to distribute it in that case actually believed that what they were distributing was that they were putting it out there with the intention that people believe it was actual child pornography. And then that the people who receive that subjectively believe that they are receiving child pornography. And I think that if we put in, so what we have in our statute instead, it is we have a piece which says, hold on, I'm just trying to make sure I say exactly what the statute says. We have a piece that says with knowledge of the character and content, but that doesn't go as far as what the U.S. Supreme Court approved of in Williams. What they approved of there, and I'll read the language specifically from Williams, was that the depiction was intended to cause another to believe, that's the end of the quote, that it was actual child pornography. I think if we put those two pieces in and that would just make it so that what we're doing is not sort of saying, well, we have a statute that's kind of like the federal statute that was affirmed in Williams, but to actually use the same language that the U.S. Supreme Court approved of in Williams, that would eliminate our constitutional concerns. But I want to, since I have, it looks like six more minutes, I want to just touch on why this is so important because I think that that has also been left a little unclear. In the conversations today, the distinction between an as applied challenge and a facial challenge was brought up and the definition of facial challenge that was used, I don't think is really an accurate reflection of what a facial challenge is. The way it was said today was that a facial challenge is when the statute has no constitutional application at all. But that's not accurate. What it is is, and this is a little weird because for almost all of the laws that we look at, we have these concepts like doctrines of severability and presumptions of constitutionality, which mean that if there's a statute and some piece of it is unconstitutional, then only that piece is invalid. Or if there's a statute and it could be read to be constitutional or it could be read to be unconstitutional, it's the constitutional reading that prevails. But it's different when it comes to the First Amendment. The U.S. Supreme Court has treated the First Amendment entirely differently and primarily that revolves around two concepts which are the doctor and overbreath, which leads to then a facial challenge. And so what a facial challenge really is in the context of the First Amendment is it's when the defendant comes in and says, you don't need to look at anything about what I did or did not do. This statute covers speech that is constitutionally protected. And because it does, it can't apply to anyone, even to people who are engaging in speech that is not constitutionally protected. So to give you an example, when I do, I've done facial challenges to statutes on First Amendment crowds only a couple of times. But when I do it, here would be an example. I'll use the child porn statute just because that's what we're looking at. I use the term child pornography not because I think it's the most appropriate term. I actually really like the change in language to child sexual abuse materials, but because I'm talking about case law here, I'm using the term child pornography because that's what the case law uses and it has a specific definition in constitutional law and I don't wanna lose that. So I'm gonna use the term child pornography. But so if I had a child pornography statute that said, for example, what the proposal from last year said, which was essentially any simulation of sexual conduct involving a child under the age of 16 is unlawful without getting into artistic merit or anything like that, then I would bring a facial challenge, even so let's say I had a defendant who was charged with possessing actual child pornography, the stuff that you would imagine when you talk about child pornography, images of actual children being actually sexually abused. I could still challenge their conviction by saying, not going in and saying, my clients, these images that my client had are constitutionally protected images, but by saying, look, this statute is written so broadly that it could cover material that is constitutionally protected and because of that, it can't apply to anyone. That's what a facial challenge is and there's a real risk of that in this situation because if this statute is written so that it doesn't comply with the strict guidelines or the strict requirements that the US Supreme Court has put into place, then it could invalidate the entire statute and it would be a different effect here than it would in other states. There's been a lot of talk about how there's 44 states with simulated child pornography laws, that's true, but in most of those states and pretty much all the ones I could find, it's a separate law. So if they wrote it too broadly, it would invalidate that statute and that statute alone. What this proposal does is it incorporates simulated child pornography into our general child pornography statute, which means that if this piece of it gets written too broadly, it could invalidate the entire statute, not just relating to simulated child pornography, not just related to certain, but the entirety of it, even the stuff that is exactly what you would traditionally imagine when you're thinking about child pornography and its prohibition. That's why what our office, our office's position is that if this is a statute that the legislature feels is necessary, the statute should mirror the language that the US Supreme Court has approved of in Williams and we shouldn't be out there on our own trying to sort of make up language that fits better into our existing statute, but departs from the language of Williams. So I know that left me with only one minute for questions. I promise I did not do that on purpose. I actually like the question. So if anybody has a super short question, I'll take it, but otherwise. Yeah, thank you. And actually Mike is having some technical difficulties. So he's not here, he's who we have a meeting with. So I guess maybe we have a little bit more time, Marshall, I want to make sure. So in terms of actual, your suggestion to put actual, where would you want that? That's a good question. I haven't looked at exactly that. Yeah, you can get back to me, but I'd be interested in that. And also when we hear from you next time, I'd like to hear more about intentional, because you said something, but I couldn't follow where we would insert that. So you could get back to us or Michelle or something. Okay, I see, oh, Michelle, I'm sorry, did you have a question? I was just going to say, I'm going to take a look at it, but I think what you could do is it's kind of, you guys oftentimes put things in there as like belts and suspenders for absolute clarity. I'm still in the position that it's not necessary, but it's probably fine to add in the word actual into the definition of child under 2821. That definition of child is the same one used in multiple places throughout the titles. And there's never any other specification that it's a real actual child, but maybe to include that would be nonsensical in those other contexts. So I think it's probably fine if you choose to add it to the 2821 definition there, but because you use child so often throughout, I think you'd want to be careful about just adding it in certain places in the individual sections. Okay, all right, thank you. Martin. Yeah, that wasn't going to be one of my questions of whether it could just be in subsection seven, but you're saying that that wouldn't work, Michelle. Just in the simulation component, and you're muted. You're muted, you're muted. Let me take a look at that. It's early in the session. Only 30 more times before you start remembering. I'm trying to be really careful about muting myself so you guys don't hear my dogs bark every time the bell man shows up and things like that. So let me take a look at it. I think in an earlier draft when I was working on this one, I thought about putting it in to subdivision seven, and maybe we just put it there instead of into the definition section, but I'll take a look at it and play with it. So my quick question actually was going to be whether Marshall could come back because I think we need to dig into this more as well as David share. I'm really curious about the severability issue that was a little bit of a surprise to me that this whole thing would be thrown out if we phone that subsection seven. So I'd like to understand that a little bit further. And I'd also like to understand where or how an intent could be put into this or whether it's really necessary. Those are my big questions that probably not enough time to dig into it that deeply right now, but. Yeah, thank you. I was wondering about the severability as well. And we do have this on the agenda for tomorrow after the floor. And I don't see any witnesses here, but hopefully, I don't know Marshall if any other witnesses if they're available, but if not, at the very least, we can work with Michelle and certainly get back to this next week. This is not something that we want to do quickly. Appreciate that. Ken. Well, will Judge Garrison be involved in any of this testimony? I, you know, again, Judge Garrison usually speaks to us about the impact on the court, the change in law would have. So, you know, would by changing this law, are we, you know, sometimes you hear opening up the floodgates or all that, you know, we're gonna have a whole bunch of new cases. I don't know, Michelle or somebody else. No, no, the court doesn't weigh in on that sort of thing. It's just the impact would it create more cases? Oh, I mean, whether or not they would flood the courts. No, it's just when I go and I hear that it could, oh, I'm sorry, Maxine, I'm sorry. I'm trying to help you understand Ken, why your question was, would the court weigh in on this? And really the court speaks to what the impact of proposed law would be on the court. And it's usually a matter of resources as opposed to, you know, they don't discuss policy. So I'm not sure what, like, why would you, what would you think that, or what would you want to hear from the court? I don't want to screw this up. You know, I want to make sure that, like, when we were hearing that, you know, that this could go through the crack for lack of better words or something like that. It's like, this is serious stuff that every time I hear about it, I just, it disgusts me, you know, it's just God awful. And I just want to make sure, I'm not saying we don't do it right, but it's like, I just want to close every avenue as possible, if that makes sense. Yeah, no, I appreciate that. And that's why we certainly need to continue our discussion with the witnesses who are here today and Michelle. And then we can think of, if there are other practitioners or others that we want to hear from, but I don't see any role for the court in this, in this discussion. But again, if somebody else does, you know, try and. If you want to address this concerns, I could come in tomorrow and I could bring in some language from case law that explains the sort of the process and scope of facial overbreath and facial invalidity challenge. Cause I think I may not have explained it as clearly as they explain it in case law and I could just bring in some case law that'll make it clear. You're welcome to continue your testimony. Absolutely. Other? Make one comment as far as what Ken was asking about, just also for new folks, if they're not completely familiar. The concept is that a court can't provide an advisory opinion is what it's called. Essentially they can only rule on cases that are brought before them. They can't provide instruction on how a court might rule on a particular controversy. They can't tell the legislature that one way or another. So that, if that's what you were after on that Ken. No, that's not what, it was like, what's happened in the past that has been learned upon that we don't miss it so it can happen again. So somebody slips through the cracks or something like that. Yeah. But I see Michelle's movements pretty quickly with the head so I think I understand it. Right. You're very good with that. I've just, I've heard Judge Gerson say he's got like a stock line about that or something about the court doesn't comment on matters of policy and stuff like that. So I've heard that for a number of years so. Anybody else? Okay, so I'm hoping, oh my, oh, I think he got back in. Great, because I was gonna say, I don't know how to get us offline when it's our time to adjourn, but tomorrow 15 minutes after the floor we will be continuing our discussion on this.