Final Policy Blog: Child Pornography

In our panel discussion on child pornography, we talked about the danger that virtual child pornography poses to children.  I believe we agreed on two possibilities: first, that virtual child pornography might feed the compulsions of pedophiles and influence them to act out their fantasies with real children; and second, that virtual child pornography might influence the real children who see it to believe that such behavior is normal and acceptable, thus making them more vulnerable to abuse.  I believe that under the precedent of Ashcroft v. Free Speech Coalition, neither of these dangers would be legally sufficient to validate a ban on virtual child pornography.

The Supreme Court in New York v. Ferber, 458 U.S. 747 (1982) held that images of children engaged in sexual activity are not protected by the First Amendment, because the First Amendment does not extend to obscenity, and speech which is the record of a crime of sexual abuse is per se obscene.[1] The compelling governmental interest cited by the Court was that of preventing abuse of children involved in the production of child pornography.[2] Advances in computer technology have since permitted the rise of virtual child pornography, in which images of adults are manipulated to look like children, or young-looking adults are substituted for children, or images of children are computer-generated.[3] Congress prohibited virtual child pornography by means of the Child Pornography Prevention Act of 1996 (CPPA).[4] The constitutionality of prohibiting virtual child pornography was litigated in Ashcroft v. Free Speech Coalition, which resulted in a qualification on the prior blanket denial of First Amendment protection to images depicting children engaged in sexual activity.[5]

The Supreme Court in Ashcroft held that the ban on virtual child pornography imposed by the CPPA was overbroad because virtual images of children engaged in sexual activity are not all necessarily obscene, and therefore might in some instances qualify for First Amendment protection.[6] An example of such an instance would be the recent movie Hounddog, in which 12-year-old actress Dakota Fanning appears in a scene which depicts the rape of the young character she plays.  A movie containing a graphic depiction of the rape of a child would not necessarily qualify as obscenity under the three-part Miller test because the movie might have serious literary, artistic, political or scientific value  The Court in Ashcroft maintained that their decision was not inconsistent with their decision in Ferber, explaining that they denied protection to the speech in Ferber not because it depicted children in sexual situations but because it depicted actual child sexual abuse.[7] The Court stated that the compelling governmental interests at stake were preventing actual child abuse and cutting off the economic motives for such abuse, not preventing future criminal acts.[8]

Both of the dangers we came up with in class are “future acts” arguments.  The Court in Ashcroft explicitly held that the causal link between existing child pornography and future instances of child abuse is too contingent and indirect and does not follow necessarily from the speech at issue, and thus that link is insufficient to outweigh First Amendment interests.[9] Unless there were some way to prove a direct and non-speculative causal link between either (1) an adult viewing virtual child pornography and then committing child abuse or (2) a child viewing virtual child pornography and then being abused, the Supreme Court probably would not accept either as justification for an outright ban on all virtual images of children engaged in sexual activity.

[1] New York v. Ferber, 458 U.S. 747 (1982)

[2] Id.

[3] Yaman Akdeniz, Internet Child Pornography and the Law 95 (2008).

[4] Shahid M. Shahidullah, Federal Laws and Judicial Trends in the Prosecution of Cyber Crime Cases in the United States: First and Fourth Amendment Issues, 45 No. 6 Crim. Law Bulletin ART 2 (2009).

[5] Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

[6] Id. at 255-56. 

[7] Id. at 250-51.

[8] Id. at 245, 251-53.

[9] Id. at 250.


~ by cstockard on December 3, 2009.

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