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. Constitution and do not constitute child pornography.

Child pornography differs from pornography 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 community 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 contemporary 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 protecting 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 prohibited 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 libertarians 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 technology.

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 sustained on grounds that pedophiles might use virtual child pornography to seduce actual children into participating in real child pornography. The prospect of crime, by itself, does not justify laws suppressing protected speech, the Court said.

In response to the Court's decision, the Senate and U.S. House of Representatives introduced 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 COMMITTEE. S. 2511, § 2(a).

In the new bill, Congress changed the prohibition against images that "appear" to be of a minor engaging in sexually explicit conduct to a prohibition against "computer image or computer-generated image that is, or is indistinguishable" from a conventional image of child pornography. Similarly, the proposed legislation replaced language prohibiting electronic images that "convey the impression" that the pornographic 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.