The Development of United States Child Pornography Laws            

As a body of law, in and of itself, child pornography regulations are of fairly recent origins.  The basis for modern United States child pornography laws stem from the Supreme Court of the United States’ decisions addressing the topic of obscenity. See United States v. Williams, 444 F.3d 1286, 1291 (11th Cir. 2006). However, the problem of child pornography specifically gained momentum with the advent of the internet. See Id. at 1290.

While the United States Supreme Court’s latest decision on the issue of child pornography[1] in essence overruled the 11th Circuit’s decision in Williams, the 11th Circuit’s decision still carries great pedagogical weight concerning the development of U.S. child pornography laws.

Modern child pornography laws can trace their origin to the Supreme Court of the United States’ decisions regarding obscenity. As early as 1969, the Court had ruled that the mere private possession of obscene material was not a crime. Stanley v. Georgia, 394 U.S. 557, 568 (1969).

Nevertheless, in 1973 the Court held that obscenity could not be considered protected speech in accord with the First Amendment. Miller v. California, 413 U.S. 15, 36 (1973). Furthermore, the court outlined a three-prong test to aid in identifying what would be considered “obscene;” the Miller test “defines obscenity as a work that (1) taken as a whole, appeals to the prurient interest under contemporary community standards, (2) depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id. at 1291 n.6.

Following the Miller decision, the Court ruled that the government was constitutionally able to regulate obscene material that had made its way into interstate commerce. United States v. Orito, 413 U.S.  139, 141-142 (1973). These decisions, Miller and Orito in particular, laid the groundwork for Congress to enact the United States’ first piece of child pornography legislation, entitled the Protection of Children against Sexual Exploitation Act.

This legislation, which was passed in 1977, punished those who would use children in the production of materials that were considered obscene under the test espoused in Miller. Williams, 444 F.3d at 1291.  However, in 1982, the Supreme Court of the United States first approached the correlation between its prescribed obscenity regulations and child pornography. New York v. Ferber, 458 U.S. 747 (1982).

The Court in Ferber declared that child pornography could be separated from mere obscenity as defined in Miller; the Court dealt with this potential conflict by declaring child pornography as a new category of speech outside the protections of the First Amendment. Ferber, 458 U.S. at 758. The court rested its reasoning on the desire to prohibit the harm resulting to the actual children included in such productions.

Furthermore, the Ferber decision ultimately allowed the government to prosecute persons creating or proliferating child pornography depicting actual children regardless as to whether the materials in question met the Miller test.  Ferber, 458 U.S. at 758. As a result of the Ferber decision, Congress passed the Child Protection Act of 1984.[2] Williams, 444 F.3d at 1291. According to the Child Protection Act, child pornography could be prosecuted simply if it was sexually suggestive, even though it might not meet the Miller test. See Williams 444 F.3d at 1291.            

Nevertheless, in 1988 Congress was forced to address the emerging threat of child pornography in relation to the advancements being made in computer technology. Williams 444 F.3d at 1291. Congress passed the Child Protection and Obscenity Enforcement Act of 1988[3], which “prohibited the use of computers to transport, distribute, or receive child pornography.” Williams, 444 F.3d at 1291.

It was also around this time when the United States Supreme Court ruled that the right to possess obscene material in one’s home previously stated in Stanley was not applicable to child pornography. Osborne v. Ohio, 495 U.S. 103, 109-11 (1990).

Still, even though Congress had passed the Child Protection and Obscenity Enforcement Act of 1988, the problem associated with child pornography and computer technology continued to grow. With further advancements in technology, it was becoming easier for individuals to wiggle their way outside of the restrictions imposed by previous child pornography legislation and United States Supreme Court decisions. Williams, 444 F.3d at 1292.

For example, the Ferber decision only addressed the recording of actual children in live performances. 458 U.S. at 764-65. This standard set in Ferber led to gaps  through which individuals could apparently sneak computer-generated images, or “virtual” images, of children engaged in sexually explicit conduct; such images were outside of the precedent at the time because they did not depict actual children in live performances, even though these images were at times indistinguishable from actual child pornography. Williams, 444 F.3d at 1292.

Congress first attempted to combat the problem of “virtual” child pornography by enacting the Child Pornography Prevention Act of 1996 (CPPA)[4]. Williams, 444 F.3d at 1292. Because Congress believed that these virtual depictions of child pornography could do just as much harm to children as actual depictions, the CPPA enlarged the definition of child pornography so as to also encompass any image that “is, or appears to be, of a minor engaging in sexually explicit conduct.”[5]

Moreover, the CPPA also included a “pandering” provision, which further restricted any images that are promoted in such a way that it “conveys the impression” that an actual child was engaging in sexually explicit conduct.[6] Because those circuits which considered vagueness and overbreadth challenges concerning the CPPA were split in their decisions, the United States Supreme Court granted certiorari to decide the issue. Williams, 444 F.3d at 1292.

What resulted was the decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). There, the United States Supreme Court invalidated both 18 U.S.C. § 2256(8)(B) and § 2256(8)(D), which were provisions of the CPPA,  as being unconstitutionally overbroad; the Court reasoned that these two provisions were overbroad in the sense that they outlawed certain conduct that could not be constitutionally restricted under either Miller or Ferber. See Ashcroft, 535 U.S. at  251.

The Court took the position that § 2256(8)(B)’s prohibition against virtual child pornography was outside the scope of established definitions of child pornography; Ferber addressed only those images which included actual children in live performances depicting sexually explicit conduct, and “protected speech does not become unprotected merely because it resembles the latter.” Ashcroft, 535 U.S. at 255. Moreover, the court concluded that the CPPA’s pandering provision, § 2256(8)(D), was unconstitutional because it created the possibility that  protected speech could be prosecuted as child pornography; the Court noted that simply because the title or trailers for a film might “convey the impression” that it contained scenes of sexually explicit conduct involving children, such a film could be prosecuted under  § 2256(8)(D) even if it actually did not contain any such scenes. Ashcroft, 535 U.S. at 257.      

Congress responded to Ashcroft v. Free Speech Coalition by passing the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act), which is found in various provisions of 18 U.S.C. Williams, 444 F.3d at 1294. The PROTECT Act contained a new “pandering” provision in response to the ruling that the previous one found at 18 U.S.C. § § 2256(8)(D) was unconstitutionally overbroad; the new pandering provison, located at 18 U.S.C. § 2252A(a)(3)(B), “provides that any person who knowingly-   (B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains- (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct; commits a criminal offense.” Williams, 444 F.3d at 1294.

The new pandering provision of the PROTECT Act was recently challenged, and the 11th Circuit in Williams held the provision to be unconstitutional for overbreadth and vagueness. Id. at 1309. This ultimately led to the United States Supreme Court granting certiorari to decide the constitutional implications of the PROTECT Act’s pandering provision.

In United States v. Williams, 128 S.Ct. 1830 (2008), the Court questioned whether the pandering provision of the PROTECT Act, as construed by the Court, criminalized a substantial amount of protected conduct.  Id. at 1841.

The Court ultimately held that the provision in question was not unconstitutional because it prohibited only offers to provide or requests to obtain child pornography, noting that “offers to give or receive what it is unlawful to possess have no social value and thus, like obscenity, enjoy no First Amendment protection.” Id. (citing Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973)).

[1] United States v. Williams, 128 S.Ct. 1830 (2008)

[2] Pub.L. No. 98-292, 98 Stat. 204 (1984) [3] Pub.L. No. 100-690, 102 Stat. 4485 (1988) [4] Pub.L. No. 104-208, 110 Stat. 3009 (1996) [5] 18 U.S.C. § 2256(8)(B) (1996) (invalidated 2002, amended 2003) [6] 18 U.S.C. § 2256(8)(D) (1996) (invalidated 2002, amended 2003)

For more information visit the Phillips & Associates page on child pornography.