Child pornography

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Child pornography is material that visually depicts sexual conduct by children.^[1] U.S. federal law defines "child pornography" as:

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where — (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.”^[2]

Child pornography is not protected by the First Amendment even when it is not obscene; i.e., child pornography need not meet the "Miller" test to be banned. Because of the legislative interest in destroying the market for the exploitative use of children, there is no constitutional right to possess child pornography even in the privacy of one’s own home.^[3]

In 1996, Congress enacted the Child Pornography Protection Act (CPPA), which defined "child pornography" to include visual depictions that appear to be of a minor, even if no minor is actually used. The Supreme Court, however, declared the CPPA unconstitutional to the extent that it prohibited pictures that are produced without actual minors.^[4]

Pornography that uses actual children may be banned because laws against it target “[t]he production of the work, not its content”; the CPPA, by contrast, targeted the content, not the production.^[5] The government “may not prohibit speech because it increases the chance an unlawful act will be committed ‘at some indefinite future time.’”^[6] In 2003, Congress responded by enacting Title V of the PROTECT Act,^[7] which prohibits any “digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” It also prohibits “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that . . . depicts a minor engaging in sexually explicit conduct,” and is obscene or lacks serious literary, artistic, political, or scientific value.

[edit] References

1. ↑ New York v. Ferber, 458 U.S. 747, 764 (1982). The definition of "sexually explicit conduct" in the federal child pornography statute includes “lascivious exhibition of the genitals or pubic area of any person [under 18], and “is not limited to nude exhibitions or exhibitions in which the outlines of those areas [are] discernible through clothing.” 18 U.S.C. §§2256(2)(A)(v), 2252 note.
2. ↑ Id. §2256(8), incorporated by reference in 47 U.S.C. § 254(7)(F).
3. ↑ Osborne v. Ohio, 495 U.S. 103 (1990).
4. ↑ Ashcroft v. Free Speech Coalition, 435 U.S. 234 (2002).
5. ↑ Id. at 249; see also id. at 242.
6. ↑ Id. at 253.
7. ↑ Pub. L. No. 108-21.