Child pornography laws in the United States
Encyclopedia
Child pornography laws in the United States specify that child pornography is illegal under federal law
and in all states. Although child pornography is widely considered to be obscene, a legal term that refers to offensive or violent forms of pornography that have been declared by decisions by the US Supreme Court to be outside the protection of the First Amendment regarding free speech, it is defined differently from obscenity. Federal sentencing guidelines regarding child pornography differentiate between production, distribution and purchasing/receiving, and also include variations in severity based on the age of the child involved in the materials, with significant increases in penalties when the offense involves a prepubescent child or a child under the age of 12. US law discriminates between pornographic images of an actual minor, realistic images that are not of an actual minor
, and non-realistic images such as drawings. The latter two categories are legally protected unless found to be obscene
, whereas the first does not require a finding of obscenity.
to the Constitution. Pornography is generally protected speech, unless it is obscene
, as the Supreme Court of the United States
held in 1973 in Miller v. California
.
Child pornography
is also not protected by the First Amendment, but importantly, for different reasons. In 1982 the Supreme Court held in New York v. Ferber
that child pornography, even if not obscene, is not protected speech. The court gave a number of justifications why child pornography should not be protected, including that the government has a compelling interest in safeguarding the physical and psychological well being of minors.
After Thornburgh, Congress amended 2257 to impose direct criminal penalities for noncompliance with the record-keeping requirements. The same plaintiffs challenged the amended statute and accommanying regulations, but the new version was upheld by American Library Ass'n v. Reno, 33 F.3d 78 (D.C. Cir. 1994).
In Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." 18 U.S.C. § 2257(h)(3).
However, after 2257 was amended in 2006 by the Adam Walsh Act, the court ruled that Sundance's restrictions no longer applied to the amended statute and generally ruled in the government's favor on its motion for summary judgment. Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2006).
. The CPPA was short-lived. In 2002, the Supreme Court of the United States decided Ashcroft v. Free Speech Coalition
, holding that the relevant portions of the CPPA were unconstitutional because they prevented lawful speech. Referring to Ferber, the court stated that "the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not 'intrinsically related' to the sexual abuse of children."
George W. Bush
signed into law the PROTECT Act of 2003
(also dubbed the Amber Alert Law).
The law enacted , which criminalizes material that has "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 "depicts an image that is, or appears to be, of a minor engaging in ... sexual intercourse ... and lacks serious literary, artistic, political, or scientific value". By its own terms, the law does not make all simulated child pornography illegal, only that found to be obscene or lacking in serious value.
In Richmond, Virginia
, on December 2005, Dwight Whorley was convicted under 18 U.S.C. 1466A for using a Virginia Employment Commission
computer to receive "...obscene Japanese anime cartoons that graphically depicted prepubescent female children being forced to engage in genital-genital and oral-genital intercourse with adult males." He was also convicted of possessing child pornography involving real children. He was sentenced to 20 years in prison.
On December 18, 2008 the Fourth Circuit Court of Appeals affirmed the conviction. The court stated that "it is not a required element of any offense under this section that the minor depicted actually exists." Attorneys for Mr. Whorley have said that they will appeal to the Supreme Court.
The request for en banc
rehearing of United States v. Whorley from the Court of Appeals was denied on June 15, 2009. A petition for writ of certiorari
was filed with the Supreme Court
on September 14, 2009 and denied on January 11, 2010 without comment.
The bill addresses various aspects of child abuse, prohibiting some illustrations and computer-generated images depicting children in a pornographic manner. Provisions against virtual child pornography in the Child Pornography Prevention Act of 1996
were ruled unconstitutional by the U.S. Supreme Court in 2002 on the grounds that the restrictions on speech were not justified by a compelling government interest (such as protecting real children). The provisions of the PROTECT Act instead prohibit such material if it qualifies as obscene
as defined by the Miller Test
; the Supreme Court has ruled that such material is not protected by the First Amendment.
In May 2008, the Supreme Court
upheld the 2003 federal law Section 2252A(a)(3)(B) of Title 18, United States Code
that criminalizes
the pandering and solicitation
of child pornography, in a 7-to-2 ruling penned by Justice Antonin Scalia
. The court ruling dismissed the United States Court of Appeals for the 11th Circuit's finding the law unconstitutionally vague. Attorney James R. Marsh, founder of the Children's Law Center in Washington, DC, wrote that although the Supreme Court's decision has been criticized by some, he believes it correctly enables legal personnel to fight crime networks where child pornography is made and sold. Child pornography is illegal and it does not have to be looked at in terms of the typical guidelines of the First Amendment
, because it is illegal due to the harm it creates to children when child pornography is made, sold and owned.
In October 2008, the Comic Book Legal Defense Fund
became involved in a case defending 38-year-old Iowa
comic collector named Christopher Handley, with Eric Chase of its United Defense Group providing his legal defense. Chase argued, "there are no actual children. It was all very crude images from a comic book." This is related to obscenity charges involving pornography depicting minors, being applied to a fictional comic book. On this, Chase said, "This prosecution has profound implications in limiting the First Amendment for art and artists, and comics in particular that are on the cutting edge of creativity. It misunderstands the nature of avant-garde art in its historical perspective and is a perversion of anti-obscenity laws." Charles Brownstein of the CBLDF commented, "The government is prosecuting a private collector for the possession of art, in the past, CBLDF has had to defend the First Amendment rights of retailers and artists, but never before have we experienced the federal government attempting to strip a citizen of his freedom because he owned comic books."
Judge Gritzner was petitioned to drop some of the charges, but instead ruled that 2 parts of the PROTECT Act criminalizing "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting" were unconstitutional. Handley still faces an obscenity charge. The motion was initially heard on June 24, 2008, but was not widely publicized prior to the Fund's involvement. CBLDF leader Neil Gaiman
remarked on how this could apply to his work The Doll's House, saying, "if you bought that comic, you could be arrested for it? That’s just deeply wrong. Nobody was hurt. The only thing that was hurt were ideas." He then initiated a perfume sales campaign to raise funds for Handley's legal defense.
Handley was convicted in May 2009 as the result of entering a guilty plea bargain at the recommendation of Chase, under the belief that the jury chosen to judge him would not acquit him of the obscenity charges if they were shown the images of question.
In October 2010, a 33 year old Idaho man, Steven Kutzner, entered into a plea agreement concerning images of child characters from the American animated television show, The Simpsons
engaged in sexual acts.
Federal law
Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...
and in all states. Although child pornography is widely considered to be obscene, a legal term that refers to offensive or violent forms of pornography that have been declared by decisions by the US Supreme Court to be outside the protection of the First Amendment regarding free speech, it is defined differently from obscenity. Federal sentencing guidelines regarding child pornography differentiate between production, distribution and purchasing/receiving, and also include variations in severity based on the age of the child involved in the materials, with significant increases in penalties when the offense involves a prepubescent child or a child under the age of 12. US law discriminates between pornographic images of an actual minor, realistic images that are not of an actual minor
Simulated pornography
Simulated child pornography is defined as pornography depicting minors that is produced without the direct involvement of children in the production process itself...
, and non-realistic images such as drawings. The latter two categories are legally protected unless found to be obscene
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
, whereas the first does not require a finding of obscenity.
Obscenity as a form of unprotected speech
In the United States, pornography is considered a form of personal expression, and thus governed by the First AmendmentFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
to the Constitution. Pornography is generally protected speech, unless it is obscene
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
, as the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held in 1973 in Miller v. California
Miller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
.
Child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
is also not protected by the First Amendment, but importantly, for different reasons. In 1982 the Supreme Court held in New York v. Ferber
New York v. Ferber
New York v. Ferber, , was a United States Supreme Court decision. The Court ruled unanimously that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity....
that child pornography, even if not obscene, is not protected speech. The court gave a number of justifications why child pornography should not be protected, including that the government has a compelling interest in safeguarding the physical and psychological well being of minors.
Record-keeping requirements
The initial iteration of , first passed in 1988, mandated that producers keep records of the age and identity of performers and affix statements as to the location of the records to depictions. However, rather than penalities for noncompliance, the statute created a rebuttable presumption that the performer was a minor. Pub. L. 100-690. This version was struck down as unconstitutional in American Library Association v. Thornburgh on First Amendment grounds. 713 F. Supp. 469 (D.D.C. 1989) vacated as moot 956 F.2d 1178 (D.C. Cir. 1992).After Thornburgh, Congress amended 2257 to impose direct criminal penalities for noncompliance with the record-keeping requirements. The same plaintiffs challenged the amended statute and accommanying regulations, but the new version was upheld by American Library Ass'n v. Reno, 33 F.3d 78 (D.C. Cir. 1994).
In Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." 18 U.S.C. § 2257(h)(3).
However, after 2257 was amended in 2006 by the Adam Walsh Act, the court ruled that Sundance's restrictions no longer applied to the amended statute and generally ruled in the government's favor on its motion for summary judgment. Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2006).
Simulated pornography
Simulated child pornography was made illegal with the Child Pornography Prevention Act of 1996Child Pornography Prevention Act of 1996
The Child Pornography Prevention Act of 1996 was a United States federal law to restrict child pornography on the internet, including virtual child pornography....
. The CPPA was short-lived. In 2002, the Supreme Court of the United States decided Ashcroft v. Free Speech Coalition
Ashcroft v. Free Speech Coalition
Ashcroft v. Free Speech Coalition, , struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech." The case was brought against the Government by the Free Speech Coalition, a "California...
, holding that the relevant portions of the CPPA were unconstitutional because they prevented lawful speech. Referring to Ferber, the court stated that "the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not 'intrinsically related' to the sexual abuse of children."
1466A - Obscene visual representations of the sexual abuse of children
In response to the demise of the CPPA, on April 30, 2003 PresidentPresident of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
signed into law the PROTECT Act of 2003
PROTECT Act of 2003
The PROTECT Act of 2003 is a United States law with the stated intent of preventing child abuse. "PROTECT" is a "backronym" which stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today"....
(also dubbed the Amber Alert Law).
The law enacted , which criminalizes material that has "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 "depicts an image that is, or appears to be, of a minor engaging in ... sexual intercourse ... and lacks serious literary, artistic, political, or scientific value". By its own terms, the law does not make all simulated child pornography illegal, only that found to be obscene or lacking in serious value.
In Richmond, Virginia
Richmond, Virginia
Richmond is the capital of the Commonwealth of Virginia, in the United States. It is an independent city and not part of any county. Richmond is the center of the Richmond Metropolitan Statistical Area and the Greater Richmond area...
, on December 2005, Dwight Whorley was convicted under 18 U.S.C. 1466A for using a Virginia Employment Commission
Virginia Employment Commission
The Virginia Employment Commission is a division of the Virginia state government that provides benefits and services to unemployed citizens....
computer to receive "...obscene Japanese anime cartoons that graphically depicted prepubescent female children being forced to engage in genital-genital and oral-genital intercourse with adult males." He was also convicted of possessing child pornography involving real children. He was sentenced to 20 years in prison.
On December 18, 2008 the Fourth Circuit Court of Appeals affirmed the conviction. The court stated that "it is not a required element of any offense under this section that the minor depicted actually exists." Attorneys for Mr. Whorley have said that they will appeal to the Supreme Court.
The request for en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
rehearing of United States v. Whorley from the Court of Appeals was denied on June 15, 2009. A petition for writ of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
was filed with the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
on September 14, 2009 and denied on January 11, 2010 without comment.
Section 2252A
The PROTECT Act also amended , which was part of the original CPPA. The amendment added paragraph (a)(3), which criminalizes knowingly advertising or distributing "an obscene visual depiction of a minor engaging in sexually explicit conduct; or a visual depiction of an actual minor engaging in sexually explicit conduct." The law draws a distinction between obscene depiction of any minor, and mere depiction of an actual minor.The bill addresses various aspects of child abuse, prohibiting some illustrations and computer-generated images depicting children in a pornographic manner. Provisions against virtual child pornography in the Child Pornography Prevention Act of 1996
Child Pornography Prevention Act of 1996
The Child Pornography Prevention Act of 1996 was a United States federal law to restrict child pornography on the internet, including virtual child pornography....
were ruled unconstitutional by the U.S. Supreme Court in 2002 on the grounds that the restrictions on speech were not justified by a compelling government interest (such as protecting real children). The provisions of the PROTECT Act instead prohibit such material if it qualifies as obscene
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
as defined by the Miller Test
Miller test
The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
; the Supreme Court has ruled that such material is not protected by the First Amendment.
In May 2008, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
upheld the 2003 federal law Section 2252A(a)(3)(B) of Title 18, United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
that criminalizes
Criminalization
Criminalization or criminalisation, in criminology, is "the process by which behaviors and individuals are transformed into crime and criminals". Previously legal acts may be transformed into crimes by legislation or judicial decision...
the pandering and solicitation
Solicitation
Literally, solicitation means: 'urgently asking'. It is the action or instance of soliciting; petition; proposal. In criminal law, it most commonly refers to either the act of offering goods or services, or the act of attempting to purchase such goods or services...
of child pornography, in a 7-to-2 ruling penned by Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
. The court ruling dismissed the United States Court of Appeals for the 11th Circuit's finding the law unconstitutionally vague. Attorney James R. Marsh, founder of the Children's Law Center in Washington, DC, wrote that although the Supreme Court's decision has been criticized by some, he believes it correctly enables legal personnel to fight crime networks where child pornography is made and sold. Child pornography is illegal and it does not have to be looked at in terms of the typical guidelines of the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
, because it is illegal due to the harm it creates to children when child pornography is made, sold and owned.
Further developments
In 1994, the U.S. Court of Appeals for the 3rd Circuit ruled that the federal statute contains no requirement that genitals be visible or discernible. The court ruled that non-nude visual depictions can qualify as lascivious exhibitions and that this construction does not render the statute unconstitutionally overbroad.In October 2008, the Comic Book Legal Defense Fund
Comic Book Legal Defense Fund
The Comic Book Legal Defense Fund is a United States non-profit organization created in 1986 to protect the First Amendment rights of comics creators, publishers, and retailers covering legal expenses....
became involved in a case defending 38-year-old Iowa
Iowa
Iowa is a state located in the Midwestern United States, an area often referred to as the "American Heartland". It derives its name from the Ioway people, one of the many American Indian tribes that occupied the state at the time of European exploration. Iowa was a part of the French colony of New...
comic collector named Christopher Handley, with Eric Chase of its United Defense Group providing his legal defense. Chase argued, "there are no actual children. It was all very crude images from a comic book." This is related to obscenity charges involving pornography depicting minors, being applied to a fictional comic book. On this, Chase said, "This prosecution has profound implications in limiting the First Amendment for art and artists, and comics in particular that are on the cutting edge of creativity. It misunderstands the nature of avant-garde art in its historical perspective and is a perversion of anti-obscenity laws." Charles Brownstein of the CBLDF commented, "The government is prosecuting a private collector for the possession of art, in the past, CBLDF has had to defend the First Amendment rights of retailers and artists, but never before have we experienced the federal government attempting to strip a citizen of his freedom because he owned comic books."
Judge Gritzner was petitioned to drop some of the charges, but instead ruled that 2 parts of the PROTECT Act criminalizing "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting" were unconstitutional. Handley still faces an obscenity charge. The motion was initially heard on June 24, 2008, but was not widely publicized prior to the Fund's involvement. CBLDF leader Neil Gaiman
Neil Gaiman
Neil Richard Gaiman born 10 November 1960)is an English author of short fiction, novels, comic books, graphic novels, audio theatre and films. His notable works include the comic book series The Sandman and novels Stardust, American Gods, Coraline, and The Graveyard Book...
remarked on how this could apply to his work The Doll's House, saying, "if you bought that comic, you could be arrested for it? That’s just deeply wrong. Nobody was hurt. The only thing that was hurt were ideas." He then initiated a perfume sales campaign to raise funds for Handley's legal defense.
Handley was convicted in May 2009 as the result of entering a guilty plea bargain at the recommendation of Chase, under the belief that the jury chosen to judge him would not acquit him of the obscenity charges if they were shown the images of question.
In October 2010, a 33 year old Idaho man, Steven Kutzner, entered into a plea agreement concerning images of child characters from the American animated television show, The Simpsons
The Simpsons
The Simpsons is an American animated sitcom created by Matt Groening for the Fox Broadcasting Company. The series is a satirical parody of a middle class American lifestyle epitomized by its family of the same name, which consists of Homer, Marge, Bart, Lisa and Maggie...
engaged in sexual acts.