Child Pornography v. The First Amendment

Sally Santander - Fall 2003 - Constitutional; Criminal Law

Table of Contents

1. Introduction

2. Primary Sources

   1. First Amendment 

   2. 1996 Child Pornography Prevention Act

   3. 2003 Protect Act

3. Secondary Sources

   1. Legal Encyclopedias

   2. Law Reviews

   3. Books

4. Additional Resources

I. INTRODUCTION

Child pornography has long been considered outside the protection of the First Amendment. The justification for placing child pornography outside the protection of the First Amendment has been the state's compelling interest in protecting children. Child pornography creates several instances of abuse. First the children used in the material suffer actual sexual abuse during the production of the material; further abuse occurs when visual depictions of the child are circulated and create a permanent record of that abuse. Finally that same material may be used by child predators to induce other children into sexual activity. Courts have consistently found that no amount of artistic political or scientific value can justify the abuse sustained by the child.

But what happens when those justifications no longer exist? What if technology could allow child pornographers to create images of children engaged in sexual conduct without the use of any actual children? This is the dilemma that United States Supreme Court is now facing. Recent technology allows pornographers to create pornographic images using only non-pornographic images of real children or no children at all. A process called "morphing" allows a person to alter images. Using images of legal adults engaged in sexual activity a person can "age-down" the subjects making them appear as children engaged in sexual conduct. Another technology known as "computer manipulation" allows a person to take an image of a real child scan it into a computer and superimpose the child's face on an image of a person engaged in sexual conduct.

Congress in its attempt to expand the criminalization of child pornography to include virtual child pornography enacted the Child Pornography Prevention Act of 1996. Because its language prohibits the creation transportation and use of all child pornography including the virtual pornography described above it was challenged and the portions regulating virtual child pornography were declared unconstitutional. In response to Ashcroft v. Free Speech Coalition Congress enacted the 2003 Protect Act. The Protect Act is meant to remedy the flaws of the CPPA by providing for the prosecution of obscenity in lieu of virtual child pornography. As you will read below the debates are both passionate and polarized.

This guide is intended to acquaint the reader with the foundations of obscenity and child pornography regulations and aid in further research on this topic.

II. PRIMARY SOURCES

A. First Amendment

The First Amendment to the United States Constitution provides in pertinent part that "Congress shall make no law... abridging the freedom of speech or of the press." This has been heralded as one of our most precious rights and the courts have systematically struck down laws that prohibit free speech. There are very few types of speech that are not protected by the First Amendment such as libel obscenity and child pornography. Where the courts do allow limitations such as time place and manner restrictions they have held that the statutes must clearly define the prohibited speech and that the laws cannot restrict lawful speech. The following cases establish these parameters with respect to obscenity and child pornography.

1. Obscenity
Miller v. California 413 U.S. 15 (1973)

The appellant was convicted of mailing sexually explicit material in violation of a state statute and appealed on grounds of a First Amendment violation. The United States Supreme Court provided the following guidelines for regulation of obscenity:

Where a state law regulates works that depict or describe sexual conduct that conduct must be specifically defined by applicable state law.

The regulation must be limited to works which taken as a whole appeal to a morbid or prurient interest in sex depict sex in a patently offensive way and which taken as a whole do not have serious literary artistic political or scientific value.

The guidelines for a trier of fact must be (1) whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest (2) whether the work depicts in a patently offensive way sexual conduct specifically defined by applicable state law and (3) whether the work taken as a whole lacks serious literary artistic political or scientific value.

Osborne v. Ohio 495 U.S. 103 (1990)

The state can criminalize possession and viewing of child pornography. The Court cited three justifications for the ban on child pornography: (1) reducing demand for it would reduce the supply and thus reduce the abuse afflicted on children; (2) destruction of the material would eliminate the permanent record of the child's abuse; and (3) eliminating the material that is used to entice children into sexual activity. Note that the third justification goes further than the Ferber Court which used the exploitation of children during the production of material as justification.

2. Child Pornography
New York v. Ferber 458 U.S. 747 (1st Cir. 1982)
Here the United States Supreme Court distinguishes obscenity and child pornography as two separate types of speech. In Miller the Court allows content-based regulation of obscenity provided that the applicable statute describes the conduct that is prohibited that the works be taken as a whole that the work lack serious literary artistic political or scientific value and that the work be viewed in light of contemporary community standards. In other words sexually explicit speech may be protected speech.

Unlike obscenity child pornography is not protected speech. States may regulate expression that involves a minor engaging in sexually explicit conduct because the compelling interest of protecting children from harm survives strict scrutiny used for First Amendment claims. The Court recognized that (1) the child is abused/harmed in the making of the sexually-explicit material and (2) the child is stigmatized into adulthood because evidence of the abuse is still in circulation.

"Children's bodies aren't like automobiles with the assailant's fingerprints lingering on the wheel. The world of sexual abuse is quintessentially secret. It is the perfect crime."

Beatrix Campbell

B. Child Pornography Prevention Act of 1996
The CPPA sought to regulate child pornography; the CPPA defined 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." This language encompasses both virtual child pornography where no children were involved in sexual conduct and actual child pornography.

Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002)
The United States Supreme Court found that certain provisions of the CPPA were unconstitutional on the following grounds:

Overbreadth: the ban on virtual child pornography in the CPPA abridges the freedom to engage in a substantial amount of lawful speech and thus is overbroad and unconstitutional under the First Amendment. Speech prohibited by the CPPA's ban on virtual child pornography is distinguishable from [actual] child pornography which under Ferber may be banned without regard to whether it depicts works of value. The provision of the CPPA that bans depictions of sexually explicit conduct that are "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" is also substantially overbroad and in violation of the First Amendment.

State Interest is not Compelling: the fact that it is difficult to distinguish between virtual pornography and actual pornography and prove that actual children were used cannot justify a ban on materials in which no actual children were used.

Obscenity: the CPPA cannot be read to prohibit obscenity because it lacks the necessary criteria such as language requiring the material to appeal to prurient interests or be patently offensive. Additionally all speech of this type is prohibited regardless of any serious literary artistic political or scientific value.

"We're in a war with people who exploit children for sexual purposes and we've got to win that war."

Patty Reinhert

 

C. 2003 Protect Act

18 USCA § 2252A
The 2003 Protect Act was written in response to Ashcroft. This act prohibits actual child pornography and addresses virtual child pornography through obscenity.

 

This section provides that any person who mails transmits or ships by means of interstate or foreign commerce

(1) mail or transmit child pornography
(2) receive or distribute child pornography
(3) reproduce advertise promote present child pornography or material that contains an obscene visual depiction of a minor engaging in sexually explicit conduct or an actual child engaging in sexually explicit conduct
(4) knowingly sell or possess with intent to sell child pornography or
(5) knowingly possess any book magazine periodical film videotape computer disk or any other material that contains an image of child pornography

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III. SECONDARY SOURCES

Miller Robin Cheryl Validity of Search or Seizure of Computers Computer Disks or Computer Peripheral Equipment 84 A.L.R.5th 1 (2000).
KF132. A522 5th ser. c.1

Ms. Miller addresses Fourth Amendment issues with respect to computer technology. A substantial portion of this article discusses the search and seizure of material containing child pornography including joint access consent to search specificity of warrants and deleted data/release of control.

Vernia Benjamin J. Validity Construction and Application of State Statutes or Ordinances Regulating Sexual Performance by a Child 42 A.L.R.5th 291 (1996).
KF132. A522 5th ser. c.1

Mr. Vernia provides a comprehensive look at the regulation of child pornography including the distinction between child pornography and obscenity application of First Amendment standards to federal and state laws and the relatively recent trend of "virtual" child pornography. This is a lengthy article (approximately 130 pages) but is an excellent source for anyone who wants to know what laws have been enacted the challenges to those laws and whether those challenges were successful.

Berglet Kelley Stimulation by Simulation: Is There Really Any Difference Between Actual and Virtual Child Pornography? The Supreme Court Gives Child Pornographers a New Vehicle for Satisfaction Capital University Law Review 31 Cap. L. U. Rev. 565 (2003).

This article discusses the merits of the CPPA and criticizes the Supreme Court for invalidating portions pertaining to virtual child pornography. This article also describes the various ways in which simulated child pornography is created. Virtual child pornography is created by "morphing" a picture of a real person into a child engaging in sexual activity. Computer-generated images are images in which a real child's face is superimposed on the body of a person engaging in sexual activity.

Ms. Berglet reiterates the state interests proffered by Congress for the regulation of child pornography: the use of a real child's faces in sexually explicit pictures-even where the child does not participate in the sexual conduct depicted in that picture-degrades children; and child pornography either simulated or real is used by child predators to induce their victims. Additionally repetitive viewing of child pornography either simulated or real desensitizes viewers and conditions them to prefer child pornography/children.

This article does not directly address the first amendment issues cited in recent case law such as overbreadth and vagueness but offers a brief overview of the issues and relevant case law.

Friel Samantha L. Porn by Any Other Name? A Constitutional Alternative to Regulating "Victimless" Computer-Generated Child Pornography Valparaiso University Law Review 32 Val. U. Rev. 207 (1997).

Here the author asserts that there is such a thing as victimless child-pornography. Ms. Friel suggests that upon the state meeting its burden of showing that material contains apparent child pornography the burden shifts to the defendant who may offer evidence that no real children were used in the material. Proof that a real child was not used in the production of the pornographic material should exculpate the defendant.

Wasserman Adam J. Virtual.child.porn.com: Defending the Constitutionality of the Criminalization of Computer-generated Child Pornography by the Child Pornography Prevention Act of 1996-A Reply to Professor Burke and Other Critics Harvard Journal on Legislation 1998.

This article addresses the criticisms of the CPPA in an artful and effective way. Mr. Wasserman explores the case law before the advent of virtual child pornography and applies those rulings to the issues surrounding the CPPA.

Clark Matthew D. Obscenity Child Pornography and Indecency Novinka Books Hauppauge N.Y. 2002.
KF9444. 037 2002
http://www.galileo.peachnet.edu/cgi-bin/homepage.cgi?_cc=1&_id=8360b99f-1140219393-3117

Jenkins Philip Beyond Tolerance: Child Pornography on the Internet New York University Press New York N.Y. 2001.
HQ471. J45 2001
http://www.galileo.peachnet.edu/cgi-bin/homepage.cgi?_cc=1&_id=8360b99f-1140219393-3117

Nowak John E. and Rotunda Ronald D. Constitutional Law Fourth Edition West Publishing Company St. Paul M.N. 1991.
KF4550. N6 1991
http://www.galileo.peachnet.edu/cgi-bin/homepage.cgi?_cc=1&_id=8360b99f-1140219393-3117

IV. ADDITIONAL RESOURCES

Click on any of these titiles to go directly to the website.

FindLaw LawCrawler
FindLaw allows anyone to look-up legal information at no cost!

Georgia Bureau of Investigations
The GBI has a website that provides information on sex crimes and databases to help locate sex offenders and child predators. Note: you must know the name of the offender/predator.

lawschool.westlaw.com

LexisNexis for Law Schools

Megans-Law.net
This website allows you to enter a state and zip code to find child predators and sex offenders in your area.

Westlaw