Child Pornography Laws

It is a federal offence to knowingly receive child pornography (See 18 USC 2252 ). Child pornography is defined as: "any visual depiction of "sexually explicit conduct" involving children" by 18 USC 2252 (a) (2) (A). Sexually explicit conduct is open to intrepretation, but the images must usually involve sex acts and not mere suggestive poses. Each state howvever may enact laws because the obscentity standard articulated by the supreme court has been held not apply to child pornography because child pornography is per se obscene (Miller v. California 413 U.S. 15 (1973). It is also illegal to advertise child pornography (See also 18 USC 2251). See also New York v. Ferber 458 U.S. 747 (1982) which held that States can prohibit the depiction of minors engaged in sexual conduct. See also Osborne v. Ohio 495 U.S. 103 (1990) where the court upheld a statute making it illegal to possess child pornography.

Child Pornography Prevention Act of 1996

This bill was signed into law by President Clinton. It had passed the US Senate on September 30, 1996 just hours before the midnight deadline for the start of fiscal year 1997. The Act may be unconstitutional because it outlaws images produced without any involvement by an actual child. See the cases below.

It has been amended with a Hatch-Bidden substitute but there has been only small changes. The new legislation expands the definition of child pornography. Section 3 of the 1996 Act, adds a new subsection to 18 U.S.C. 2256(8) which now 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' would be identified in 18 U.S .C. 2256(9) to mean a minor who is capable of being recognised 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 new 18 U.S.C. 2252A 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 provison, the receivers of child pornography. 5 years for possession offences and life imprisonment for repeat offenders convicted of sexual abuse of a minor.

Section 2 of the 1996 Act includes important findings related to pseudo-photographs and explains why it should be illegal as:

"Computer-generated child pornography results in many of the same types of harm, and poses the same danger to the well-being of children, as photographic child pornography, and provide a compelling governmental interest for prohibiting the production, distribution, possessing, sale or viewing of all forms of child pornography, including computer-generated depictions which are, or appear to be, of children engaging in sexually explicit conduct."

FREE SPEECH v RENO, U.S. 9th Circuit Court of Appeals, (97-16536) - Decembert 1999
Appeal from the United States District Court for the Northern District of California Samuel Conti, District Judge, Presiding
Argued and Submitted March 10, 1998--San Francisco, California,
Filed December 17, 1999
Before: Warren J. Ferguson and Sidney R. Thomas, Circuit Judges, and Donald W. Molloy,1 District Judge.
Opinion by Judge Molloy; Dissent by Judge Ferguson

The court of appeals affirmed a judgment of the district court in part and reversed in part. The court held that the Child Pornography Prevention Act (CPPA) is unconstitutional to the extent that it proscribes computer images that do not involve the use of real children in their production or dissemination.

Section 2556(8) of the CPPA defines child pornography as any visual depiction, including computer images, of sexually explicit conduct.

Subsection (B) bans sexually explicit depictions that "appear to be" minors; subsection (D) prohibits depictions that "convey the impression" that they contain sexually explicit portrayals of minors.

When a statute restricts speech by its content, it is pre-sumptively unconstitutional. The CPPA fails both tests for subjective neutrality: it expressly aims to curb a particular category of expression (child pornography) by singling out that type of expression based on its content, and banning it.

Blanket suppression of an entire type of speech is by its very nature a content-discriminating act. The CPPA is not a time, place, or manner regulation.

The statute criminalizes even those materials that do not involve a recognizable minor. While the government is given greater leeway in regulating child pornography, materials or depictions of sexual conduct that do not involve live performance or visual reproductions of live performances retain First Amendment protection.

Congress has no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children.

Any victimization of children that may arise from pedophiles' sexual responses to pornography apparently depicting children engaging in explicit sexual activity is not a sufficiently compelling justification for the CPPA's speech restrictions. To hold otherwise would enable the criminalization of figments of creative technology that do not involve any human victim in their creation or presentation.

While computer-generated images of child pornography are repugnant, they do not involve real children, and there is no demonstrated basis to link such images with harm to real children. Absent this nexus, the CPPA does not withstand constitutional scrutiny.

The CPPA's criminalizing of material that "appears to be a minor" and "conveys the impression" that the material is a minor engaged in explicit sexual activity, is void for vagueness. It does not give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, and fails to provide explicit standards for those who must apply it, with the attendant dangers of arbitrary and discriminatory application.

The Supreme Court has restricted the regulation of pornographic material involving minors because of the harm caused by its creation, not necessarily because of the consequences of its creation. The government's interest in prohibiting computer-generated child pornographic depictions is not the same as its interest in prohibiting child pornography produced by using actual children. In the latter instance there may be harm to a child.

In the former there is no harm to an actual child if no real human is used in the production of the material. What is left is an inconsistent effort to regulate the consequences of abusing children to make such images, even though no children are used in its production. [16] The CPPA's inclusion of constitutionally protected activity makes it overbroad.

See the full judgment through http://laws.findlaw.com/9th/9716536.html

The 1996 Act upheld by a Federal Judge - August 1997

The US Child Pornography Prevention Act of 1996 which bans computer-generated sexual images of children and porn featuring adults who are depicted as minors was upheld by a federal judge on the 12th of August 1997. Rejecting arguments by sex film distributors and the American Civil Liberties Union, U.S. District Judge Samuel Conti said the new law protects children from sexual exploitation without violating freedom of speech.

"Even if no children are involved in the production of sexually explicit materials, the devastating ... effect that such materials have on society and the well-being of children merits the regulation of such images," Conti wrote in the first court ruling on the law's validity.

He dismissed the ACLU's fears that the law could criminalize a film of "Romeo and Juliet" or a doctor's sex education manual. Only pictures that are marketed as child pornography are covered by the law, Conti said.

A spokesman for the film distributors said they planned to appeal. ACLU lawyer Ann Brick, who filed a supporting brief, said the law was broader than Conti made it out to be. Congress did not merely ban computer-generated images of children in sexual activities, but also declared that it was "illegal to use young-looking adults if we don't like the way you marketed it," Brick said. She said the rationale used by Congress and Conti-that the images would help molesters recruit young victims-would apply equally to "literature that describes sex in a way that makes it seem beautiful."

Justice Department spokesman Joe Krovisky declined comment.

The law, passed last September, enlarged the federal definition of child pornography, which previously covered only erotic pictures of actual minors. Although such material may not be legally obscene, its prohibition has been upheld by the Supreme Court to prevent sexual exploitation of minors. The new law applies to computer-generated images as well as films and photographs. It bans any visual depiction that "is, or appears to be, of a minor engaged in sexually explicit conduct." Distributors of sexually explicit pictures of adults who appear to be minors can avoid conviction if they can show that they did not advertise or present the material in a way that would "convey the impression" that it showed sexual acts by a minor.

That defense would not apply to computer simulations.

The lawsuit, filed by a group of more than 600 producers and distributors of "adult-oriented materials" calling themselves the Free Speech Coalition, argued that the law was so broadly worded that it could cover any picture in which an adult portrays a minor engaged in sexual activity.

Terms like "appears to be" and "convey the impression" are so loose that it would be difficult to know what material was illegal, the suit said. But Conti said any ambiguity in those terms "can be resolved by examining whether the work was marketed and advertised as child pornography." He rejected the ACLU's argument that the only justification for a child pornography ban recognized by the Supreme Court is the prevention of harm to children used in the production of such material.

Quoting congressional language, Conti said such laws can also seek to stop molesters from whetting their appetite with pornography and using it to break down their victims' resistance-effects that do not depend on the use of actual children in the production. The law "is designed to counteract the effect that such (material) has on its viewers, on children, and to society as a whole, and is not intended to regulate or outlaw the ideas themselves," the judge said.

Appeal Brief Filed in Child Pornography Prevention Act 1996 - September 1997

Free-speech advocates filed a federal appeals-court brief in an effort to overturn the controversial 1996 Act. Arguing that "sexually explicit, non-obscene speech is protected by the First Amendment," William Bennett Turner, a First Amendment attorney, filed a brief with the 9th US Circuit Court of Appeals challenging the constitutionality of the 1996 Child Pornography Protection Act.

US District Court Judge Samuel Conti in August ruled to uphold the law that criminalizes images that appear to be of children in sexually explicit poses. The images are illegal "even if they are adults that look young or are computer-generated images," Turner noted. His friend-of-the-court brief was filed on behalf of the American Civil Liberties Union, the American Civil Liberties Union of Northern California, the Periodical & Book Association of America, and Feminists For Free Expression, in support of the principal plaintiff in the case, the Free Speech Coalition.

The brief argues that the basis for Conti's decision, which takes into consideration the secondary effects of images that appear to be of children, is not constitutional. "Even if no children are involved in the production of sexually explicit materials, the devastating ... effect that such materials have on society and the well-being of children merits the regulation of such images," Conti wrote in his August decision.

Turner responded in his brief: "The secondary effects rationale is extremely hazardous to free speech, because it has no limits and can justify any kind of speech restriction. The government and others who wish to suppress or restrict certain speech can always think up undesirable 'secondary effects' believed to follow from the content of speech at issue."

US Judge Attacks the Child Pornography Protection Act of 1996 - April 1998

A federal judge in Portland, in a precedent-setting ruling, has struck down as unconstitutional a portion of a new federal law, the Child

Pornography Protection Act of 1996 aimed at regulating computer generated child pornography on the Internet. Judge Gene Carter of the U.S.

District in Portland, Maine, said the provision stretched too far by criminalizing sexual images of children who aren't real or adults who look youthful. The ruling by U.S. District Judge Gene Carter dismisses charges of child pornography possession against David Hilton, a 48-year-old who says he is a crusader against kiddie porn, and never should have been charged.

"Its incorporated definition of child pornography is constitutionally invalid," he concluded in his ruling. "The statute impacts a significant amount of adult pornography featuring adults who appear youthful,'' Carter wrote. "The court concludes that expression involving such adults will be chilled by the subjective language of the statute.

In his decision issued March 27, Carter concluded the new law is necessary to combat the harmful effects of child pornography. Peadophiles and child molesters do not make a distinction between sexually explicit images of children and young adults. But the judge agreed that the statute, as it pertains to the definition of child pornography, is too broad Carter's ruling contradicts that of a federal judge in California, who last fall upheld the law as constitutional after a civil challenge by free speech advocates. The case is now before the 9th U.S. Circuit Court of Appeals.

Carter's ruling flies in the face of U.S. District Judge Samuel Conti's ruling in a civil case in San Francisco last August, which upheld the 1996 Child Pornography Prevention Act. Conti ruled that Congress had a right to ban "fake" child porn. The US Justice Department defends the law on grounds that fake child pornography can "incite the same reaction in pedophiles." But the adult film industry, which challenged the law in California, argues that the child pornography statute was designed to protect minors--not adults dressed up as youngsters, for example.

Carter's ruling also is expected to be challenged in the First U.S. Circuit Court of Appeals in Boston. The Free Speech Coalition appealed the California ruling and is awaiting a decision.

"If it ends up there is disagreement among the circuit courts, this would be the type of case the Supreme Court takes on," Jeffrey J. Douglas, a lawyer with the Free Speech Coalition, told the Associated Press. "Then this could turn out to be a landmark case."

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