Current Child Pornography Protection

Summary of Child Pornography Prevention Act (CPPA)

The CPPA defines child pornography as:”any visual depiction, including any photograph, film, , video, picture, drawing or computer or computer-generated image or picture, which is produced by electronic, mechanical or other means, of sexually explicit conduct, where: (1) its production involved the use of a minor engaging in sexually explicit conduct, or; (2) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (3) such visual depiction has been created, adapted or modified to appear that an `identifiable minor’ is engaging in sexually explicit conduct; or (4) it is advertised, distributed, promoted or presented in such a manner as to convey the impression that it is a visual depiction of a minor engaging in sexually explicit conduct.” The term `identifiable minor’ means a minor who is capable of being recognized as an actual person by, for example, his face or other distinguishing feature or physical characteristic, although a prosecutor would not be required to prove the minor’s actual identity. The CPPA sets mandatory prison sentences of at least 15 years for production and distribution of child pornography. The act also includes and makes subject to the same provision, the receivers of child pornography.

CPPA and the First AmendmentIssue

The Child Pornography Prevention Act of 1996 expanded the federal definition of child pornography to include material that “appears to” depict a minor. The CPPA definition faced constitutional challenges based on the first amendment. The U.S. Supreme Court ultimately resolved the dispute. In Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court held a few sections of the CPPA to be overbroad and unconstitutional. The CPPA prohibited virtual child pornography of any “visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” The CPPA also banned depictions of sexually explicit conduct that are “advertised, promoted … 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.” Respondents argued that the “appears to be” and “conveys the impression” language in the CPPA was unconstitutionally overbroad and that enforcement of the CPPA would unconstitutionally effect free speech (basically, it would prohibit a substantial amount of protected expression).  The Government argued that the CPPA was necessary to protect children from sexual predators, that the speech prohibited by the CPPA was indistinguishable from child pornography, and that by eliminating “virtual child pornography” the CPPA would eliminate the market for pornography produced using real children. That was a weak argument because the court would not eliminate it if it meant that the real child harms would be effected.

The Supreme Court rejected the Government’s arguments and held that the Government failed to show a causal link between “virtual child pornography” and harm to actual children. Also, the Court reasoned that the CPPA would punish material that does not qualify as obscenity or child pornography, such as Hollywood movies that use adult actors playing the role of teenage children engaging in sexual conduct. The Supreme Court only found those few aspects of the CPPA to be unconstitutional and they left the rest of the statute in tact.

Protect Act of 2003

Thus Congress immediately passed the Protect Act of 2003 after the Supreme Court results. They wanted to make up for the decisions that were reached and fix them. The Protect Act was an odd collection of new and revised statutes designed to protect children. These included the Amber Alert Act, statutory authority for a federal sexual offender website, and an attempt to cure what the Supreme Court had undone. What the Protect Act sought to rectify was that thin area of content where it is not feasible to distinguish whether a child is actually being used and not merely a depiction of a child that was not actually using a real child. Note that the Protect Act does not seek to resurrect the misdirected ban on material that is suggestive of child sexuality without any actual displays of child sex.

The 11th Circuit was not persuaded by this cure, and in U.S. v. Michael Williams, the court struck down Section 2252A(a)(3)(B). In 2005, the U.S. Supreme Court held in Booker that mandatory application of the Sentencing Guidelines violates the Sixth Amendment, by increasing a sentencing range based on facts found by a judge, rather than a jury. Accordingly, the court excised 18 U.S.C. 3553(b)(1) from the statute.

Current Child Pornorgaphy Protection

Today, child pornography that uses actual children remains illegal. Child pornography that is obscene is illegal regardless of whether it uses children. Material which neither is obscene nor uses children is constitutionally protected (for example, medical text books). In New York v. Ferber (1982), the Court upheld a prohibition on the production, sale and distribution of child pornography because it was “intrinsically related” to the sexual abuse of children. Production not only harmed the children involved by serving as a record of their abuse, the Court said, but the sale or distribution of such pornography also economically motivated further production. This is still good law.

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~ by demetreastewart on December 2, 2009.

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