QUESTION: In the case presented in Problem 3, could not a case be made under the "protection of people involved in IC" since the subjects of the depictions are children, and therefore need special protection? More generally, can the Commerce Clause be satisfied in prohibiting any economic activity where children are exploited?
ANSWER: Perhaps. But consider these responses:
1. The children themselves are not actually "in" commerce here. Only images of them are. Thus, it is unclear that the category fits comfortably enough. Perhaps the images are "things" in commerce. But that only is necessarily true of images that satisfy the first jurisdictional element. And it seems Congress could already regulate this activity under the "use of the channels" rationale.
2. As to the more general question you raise, if it is an "economic" activity (whatever that exactly means), then we do not need to worry about whether children are being exploited to justify the Act under the Commerce Clause. Remember, if the regulated activity is economic or commercial in nature, Congress can reach it under the substantial effects category.
QUESTION: In class it was stated that not only might the Court find that the statue was applicable under the "substantial factor" prong, but also could be applied to the "use of channels" prong, since Congress is criminalizing the use of a computer.
ANSWER: Not quite. I think, using the first of the two jurisdictional elements, the statute might successfully be characterized as a regulating the shipping or transport of items in interstate commerce, which might be described as a regulation of the use of the channels of interstate commerce.
QUESTION: I thought when Congress decides to criminalize something that is used in the channels this is more under prong two, as the "use and instrumentalities of items used in interstate commerce" as oppossed to controlling the actual channel it seems Congress is controlling the instrumentaility used in the channel (the computer).
ANSWER: I think many laws could fit under both prongs simultaneously. A law criminalizing the use of the mails or the Internet to sell or transport certain images could be characterized both as (1) a regulation of the channels of interstate commerce, and (2) a regulation of a thing in interstate commerce. If Congress were attempting to regulate the computer itself (which I do not think the Act in Problem 3 does), then yes, it might be considered the regulation of an instrumentality (if a computer would so qualify). But again, I do not think this statute actually regulates the computer itself.