Federal Internet Law & Policy
An Educational Project

Child Pornography

Dont be a FOOL; The Law is Not DIY
- 1st Amendment
- Internet Freedom
- Children, Protection
- - COPA
- - CIPA
- - CPPA
- - Child Porn
- - Child Porn, Reporting
- - Protect Act
- - V Chip
- - Deceptive Content
- - Sex Offenders
- - Privacy
- Filters
- - Notification
- SPAM Labels
- Taxes
- Reports
- Obscenity
- Annoy
- Good Samaritan Defense
- Notes

Child pornography is an explosively sensitive issue. The Internet as a resource for this material has become an item of aggravated attention for both Congress and law enforcement. Nevertheless, even these efforts have suffered constitutional tribulations, similar to previous content censorship provisions such as the Communications Decency Act.

Traditionally, laws criminalizing child pornography [18 U.S.C. § 2251] have been founded on two distinct rationales: (1) obscenity and (2) protection of the child. Child pornography can legally be considered obscenity - and therefore have no First Amendment protection. Child pornography is also a policy issue on the grounds of protecting the welfare of children who are abused and mistreated in the creation of child pornography. The Supreme Court has affirmed that, based on this well founded government interest, the government can censor child pornography. [Ferber] The number of Internet child pornography prosecutions from 1995 and 2000 increased 10 percent each year. [DOJ]

The digital age, however, brings a new problem. Computer technology permits the creation of images that appear to be children but are not. In 1996, Congress amended the child pornography law to make clear that virtual kiddie porn, even such material that does not in any way involve children, is - nevertheless - illegal. According to the Child Pornography Prevention Act of 1996 (CPPA), content that appears to use children (individuals under the age of 18) engage in sexual conduct is illegal, regardless of whether such images have any scientific, literary, or artistic merit (in other words, regardless of whether it is obscene). CPPA also went one troublesome step further; merely giving the impression that material contains images of children engaged in sexual conduct, regardless of whether that impression is actually true, is illegal. Prosecutors argued that such legislation is needed because it is impossible to tell which child pornography actually involves children and which does not. [Keeney]

But now the government has a new problem. It can make obscenity illegal; it has a strong interest in protecting the mistreatment of children. What about material that does not involve children and is not obscene? What about the story of Romeo and Juliet, Shakespeare's story of two young lovers, the youngest of which is 13 years old. What about the movies American Beauty and Traffic, both of which deal with in part the sexuality of teenagers. What about the fact that the original Child Pornography Act was held constitutional, in part, because, where the sexual activity of minors is a part of scientific, literary, or artistic material, the court specifically found that the use of virtual children - people who are not in fact minors - "could be utilized." [Free Speech Coalition Slip at 13] What about the fact that individuals are allowed to get married at age 16.

The Supreme Court concluded that the government could not overcome these problems. If it is not obscene and it does not actually involve children, then the government has failed to articulate a compelling interest justifying censorship. Plenty of legitimate material falls within the wide gambit. Regardless of the difficulty of distinguishing kiddie porn from virtual kiddie porn, it is a fundamental First Amendment principle that "the government may not suppress lawful speech as a means to suppress unlawful speech." [Free Speech Coalition Slip at 17] The state cannot "reduce the adult population . . . to reading only what is fit for children." [Free Speech Coalition Slip at 14] Thus, the Supreme Court struck down the Child Pornography Prevention Act of 1996 as unconstitutional.

Well Congress did not like that much. And Congressmen generally do not like to give the impression to voters that they are not standing up against the Barbarian pornographers at the gates of our city. Thus Congress immediately (aka within about a year) passed the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (aka PROTECT Act). The PROTECT Act was an odd collection of new and revised statutes designed to protect children. These included the Amber Alert Act, the Truth in Domain Names Act, statutory authority for a federal sexual offender website, and an attempt to cure what the Supreme Court had undone.

What the PROTECT Act sought to rectify was that thin area of content where it is not feasible to distinguish whether a child is actually being used; this content is illegal. [Summary] Note that the PROTECT Act does not seek to resurrect the ban on material that is suggestive of child sexuality without any actual displays of child sex (again, think of such literature as Romeo and Juliet, dealing with the romance of youth). The 11th Circuit was unpersuaded of this cure, and in U.S. v. Michael Williams, the court struck down Section 2252A(a)(3)(B).

In 2006, in order to facilitate investigations of child pornography, US Attorney General embarked upon a campaign for ISP data retention. He met with major ISPs asking for voluntary efforts and repeated recommended to congress the enactment of new legislation.

The Law:

Child pornography that which uses actual children remains illegal. [18 U.S.C. § 2251]

Child pornography that is obscene is illegal regardless of whether it uses children (someone in possession of child pornography can potentially violate both the 18 USC 2251 and 18 US 1462 (obscenity)).

Material which neither is obscene nor uses children is constitutionally protected (for example, medical text books).

ISPs that become aware of child pornography must report this information to the National Center for Missing and Exploited Children.

ISPs are not liable for third party content on their systems.

Federal Agencies




Supreme Court

Appellate Court

District Court