Child Pornography
Like obscenity, child pornography is not protected under the First Amendment. The production, possession, or distribution of child pornography is a crime punishable by imprisonment.
Federal law defines child pornography as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture . . . of sexually explicit conduct, where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct.”
The rationale for prohibiting child pornography is the unquestioned harm that is inflicted on any child who is used in its creation. The courts have concluded that child pornography is one of the limited circumstances in which the speaker’s rights are vastly outweighed by the harms suffered by children involved in the production of the material. As one of the most egregious crimes, child pornography, also known as child sexual abuse imagery (CSAI), is understandably a key focus of law enforcement efforts, both at the federal and state level in the United States, as well as internationally. Its regulation may prohibit the production, importing, purchase, downloading or possession of child abuse images. (Related concerns over child sex trafficking have led Congress to target online advertising for adult-oriented services because of fears those ads could be connected to the abuse of children.)
The concern about the direct abuse of children is less applicable in the context of efforts to ban digital images produced without the involvement of actual children. In the 2002 case Ashcroft v. Free Speech Coalition, the Supreme Court addressed this issue and found that a federal law prohibiting any depiction that “appears to be ... of a minor engaging in sexually explicit conduct” was unconstitutionally overbroad because it would prohibit non-obscene material that was not created using actual minors. In 2003, Congress passed the PROTECT Act in response to this decision, making it illegal to create or distribute an image that "appears virtually indistinguishable" from real child pornography. At least one individual has been successfully prosecuted under this "virtual child pornography" statute for the possession of Japanese anime cartoons depicting minors engaging in sexually explicit conduct. This conviction (of a defendant named Whorley) has been upheld on an initial appeal, but the Supreme Court has not yet decided whether the "virtual child pornography" provisions of the PROTECT Act meet constitutional standards or whether composite or “morphed images” of real children that have been altered to appear as if nude or sexually explicit in nature can be criminalized.” [cites: United States v. Bach, 400 F.3d 622, 624 (8th Cir. 2005); United States v. Hoey, 508 F.3d 687, 693 (1st Cir. 2007); United States v. Hotaling, 634 F.3d 725, 729-30 (2d Cir. 2011); State v. Zidel, 940 A.2d 255, 264 (N.H. 2008); Parker v. State, 81 So. 3d 451, 453 (Fla. Dist. Ct. App. 2011)]
Current U.S. federal law requires many Internet and online service providers to report any child pornography that they become aware of to the National Center for Missing and Exploited Children (NCMEC). Service providers do not have an affirmative duty to police their networks for child pornography, but if they learn of any child pornography material on their systems, they must file an extensive report with NCMEC, preserve copies of information about the user or subscriber involved, and cooperate with law enforcement requests for the information.
Related Cases
New York v. Ferber--A ban on even non-obscene child pornography was upheld, given the state's strong interest in protecting children.