CHILD PORNOGRAPHY
Child pornography is the visual representation of
minors under the age of 18 engaged in sexual
activity or the visual representation of minors
engaging in lewd or erotic behavior designed to
arouse the viewer’s sexual interest.
Child pornography may include actual or
simulated sexual intercourse involving minors,
deviant sexual acts, bestiality, masturbation,
sado-masochistic abuse, or the exhibition of
genitals in a sexually arousing fashion. In most
instances, however, the mere visual depiction of
a nude or partially nude minor does not rise to
the level of child pornography. Thus, home
movies, family pictures, and educational books
depicting nude children in a realistic, non-erotic
setting are protected by the Free Speech Clause
of the FIRST AMENDMENT to the U.S. Constitu-
tion and do not constitute child pornography.
Child pornography differs from pornogra-
phy depicting adults in that adult pornography
may only be regulated if it is obscene. In MILLER
V. CALIFORNIA, 413 U.S. 15, 93 S.Ct. 2607, 37
L.Ed.2d 419 (1973) the U.S. Supreme Court
ruled that pornography depicting adults is
obscene if (1) the work, taken as a whole by an
average person applying contemporary commu-
nity standards, appeals to the prurient interest;
(2) the work depicts sexual conduct in a patently
offensive way; and (3) the work, when taken as a
whole, lacks serious literary, artistic, political, or
scientific value. In contrast, child pornography
can be banned without regard to whether the
pornographic depictions of minors violate con-
temporary community standards or otherwise
satisfy the Miller standard for OBSCENITY.
In New York v. Ferber, 458 U.S. 747, 102 S.Ct.
3348, 73 L.Ed.2d 1113 (U.S. 1982), the Supreme
Court explained the rationale underlying the
distinction between child pornography and
adult pornography. The Court said that the
government has a compelling interest in pro-
tecting minor children from SEXUAL ABUSE and
exploitation. Using the same rationale, the
Supreme Court later said that even the mere
possession of child pornography may be pro-
hibited without violating the First Amendment.
Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691,
109 L.Ed.2d 98 (U.S. 1990).
However, the Supreme Court drew the line
with so-called “virtual†depictions of child
pornography. In 1996 Congress passed the Child
Pornography Prevention Act (CPPA), which
expanded the federal prohibition on child
pornography to include not only pornographic
images made using actual children, but also “any
photograph, film, video, picture, or computer or
computer-generated image or picture†that “is,
or appears to be, of a minor engaging in sexually
explicit conduct.†18 U.S.C. § 2256. Civil liber-
tarians worried that the CPPA would be applied
to ban a range of sexually explicit images that
appeared to depict minors but were produced by
means other than using real children, such as
through the use of computer-imaging technol-
ogy.
The Supreme Court agreed. In Ashcroft v.
Free Speech Coalition, 535 U.S. 234, 122 S.Ct.
1389, 152 L.Ed.2d 403 (2002), the Court ruled
that the CPPA’s provisions went too far by trying
to ban speech that created no real minor victims
of sexual abuse. Nor could the CPPA be sus-
tained on grounds that pedophiles might use
virtual child pornography to seduce actual chil-
dren into participating in real child pornogra-
phy. The prospect of crime, by itself, does not
justify laws suppressing protected speech, the
Court said.
In response to the Court’s decision, the Sen-
ate and U.S. House of Representatives intro-
duced almost identical bills that attempt to
implement the substantive provisions of the
CPPA in a way that would survive constitutional
scrutiny. The Child Obscenity and Pornography
Prevention Act of 2002 was approved by the
House (H.R. 4623 § 3(a)) and as of early 2003
was pending before the SENATE JUDICIARY COM-
MITTEE. S. 2511, § 2(a).
In the new bill, Congress changed the prohi-
bition against images that “appear” to be of a
minor engaging in sexually explicit conduct to a
prohibition against “computer image or com-
puter-generated image that is, or is indistin-
guishable†from a conventional image of child
pornography. Similarly, the proposed legislation
replaced language prohibiting electronic images
that “convey the impression†that the porno-
graphic material contains a visual depiction of a
minor engaging in sexually explicit conduct with an SCIENTER requirement, which makes it an offense to advertise or promote material
“with the intent to cause any person to believe
that the material is, or contains, a visual depiction
of a minor engaging in sexually explicit
conduct.”
Finally, the House and Senate included a
number of “findings” that attempt to bolster the
constitutionality of the proposed law. Section 2 of the bill details at length how the limitations placed on prosecuting child pornographers who
pander both “real” and “virtual” child pornography have frustrated law enforcement efforts and
meritorious prosecutions in the Ninth Circuit.
These findings are plainly meant to provide any
courts that might scrutinize the proposed legislation
with a compelling interest necessary to
uphold it over First Amendment objections.
However, as of early 2003, Congress had not yet
passed the bill.
FURTHER READINGS
Clark, Matthew C., ed. 2002. Obscenity, Child Pornography
and Indecency. New York: Novinka Books.
Tate, Tim. 1990. Child Pornography: An Investigation. London:
Methuen.
U.S. Senate, Committee on the Judiciary. 2003 Stopping
Child Pornography: Protecting Our Children and the
Constitution: Hearing Before . . . 107th Congress, 2nd Session,
October 2, 2002.Washington, DC: U.S. G.P.O.
CROSS-REFERENCES
Child Abuse; Computer Crime; First Amendment; Freedom
of Speech; Obscenity; Pedophilia.
