From Wikipedia, the free encyclopedia Child pornography laws in the United States
Child pornography laws in the United States
Child pornography laws in the United States specify that a rebuttable presumption that the performer was a mi-
child pornography is illegal under federal law and in all nor. Pub. L. 100-690. This version was struck down as un-
states. Although child pornography is widely considered constitutional in American Library Association v. Thorn-
to be obscene, a legal term that refers to offensive or vi- burgh on First Amendment grounds. 713 F. Supp. 469
olent forms of pornography that have been declared by (D.D.C. 1989) vacated as moot 956 F.2d 1178 (D.C. Cir.
decisions by the US Supreme Court to be outside the pro- 1992).
tection of the First Amendment regarding free speech,[1] After Thornburgh, Congress amended 2257 to impose
it is defined differently from obscenity. Federal sentenc- direct criminal penalities for noncompliance with the
ing guidelines regarding child pornography differentiate record-keeping requirements. The same plaintiffs chal-
between production, distribution and purchasing/re- lenged the amended statute and accommanying regula-
ceiving, and also include variations in severity based on tions, but the new version was upheld by American Li-
the age of the child involved in the materials, with signif- brary Ass’n v. Reno, 33 F.3d 78 (D.C. Cir. 1994).
icant increases in penalties when the offense involves a In Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th
prepubescent child or a child under the age of 12.[2] US Cir. 1998), the Tenth Circuit rejected the regulation’s dis-
law discriminates between pornographic images of an ac- tinction between primary and secondary producers and
tual minor, realistic images that are not of an actual mi- entirely exempted from the record-keeping require-
nor, and non-realistic images such as drawings. The lat- ments those who merely distribute or those whose activi-
ter two categories are legally protected unless found to ty "does not involve hiring, contracting for, managing, or
be obscene, whereas the first does not require a finding otherwise arranging for the participation of the perform-
of obscenity. ers depicted." 18 U.S.C. § 2257(h)(3).
However, after 2257 was amended in 2006 by the
Obscenity as a form of unpro- Adam Walsh Act, the court ruled that Sundance’s restric-
tions no longer applied to the amended statute and gen-
tected speech erally ruled in the government’s favor on its motion for
summary judgment. Free Speech Coalition v. Gonzales,
In the United States, pornography is considered a form
483 F. Supp. 2d 1069 (D. Colo. 2006). [3]
of personal expression, and thus governed by the First
Amendment to the Constitution. Pornography is general-
ly protected speech, unless it is obscene, as the Supreme Simulated pornography
Court of the United States held in 1973 in Miller v. Cali- Main article: Simulated pornography
fornia. Simulated child pornography was made illegal with the
Child pornography is also not protected by the First Child Pornography Prevention Act of 1996. The CPPA was
Amendment, but importantly, for different reasons. In short-lived. In 2002, the Supreme Court of the United
1982 the Supreme Court held in New York v. Ferber that States decided Ashcroft v. Free Speech Coalition, holding
child pornography, even if not obscene, is not protected that the relevant portions of the CPPA were unconstitu-
speech. The court gave a number of justifications why tional because they prevented lawful speech. Referring
child pornography should not be protected, including to Ferber, the court stated that "the CPPA prohibits
that the government has a compelling interest in safe- speech that records no crime and creates no victims by
guarding the physical and psychological well being of mi- its production. Virtual child pornography is not ’intrinsi-
nors. cally related’ to the sexual abuse of children."
Record-keeping requirements 1466A - Obscene visual repre-
Main article: Child Protection and Obscenity Enforce-
ment Act
sentations of the sexual abuse
The initial iteration of 18 U.S.C. § 2257, first passed in of children
1988, mandated that producers keep records of the age
and identity of performers and affix statements as to the See also: Legal status of cartoon pornography depicting
location of the records to depictions. However, rather minors
than penalities for noncompliance, the statute created
1
From Wikipedia, the free encyclopedia Child pornography laws in the United States
In response to the demise of the CPPA, on April 30, 2003 Court has ruled that such material is not protected by the
President George W. Bush signed into law the PROTECT First Amendment.
Act of 2003 (also dubbed the Amber Alert Law).[4] In May 2008, the Supreme Court upheld the 2003 fed-
The law enacted 18 U.S.C. § 1466A, which criminalizes eral law Section 2252A(a)(3)(B) of Title 18, United States
material that has "a visual depiction of any kind, includ- Code that criminalizes the pandering and solicitation of
ing a drawing, cartoon, sculpture or painting" that "de- child pornography, in a 7-to-2 ruling penned by Justice
picts a minor engaging in sexually explicit conduct and Antonin Scalia. The court ruling dismissed the United
is obscene" or "depicts an image that is, or appears to States Court of Appeals for the 11th Circuit’s finding the
be, of a minor engaging in ... sexual intercourse ... and law unconstitutionally vague.[16][17] Attorney James R.
lacks serious literary, artistic, political, or scientific val- Marsh, founder of the Children’s Law Center in Washing-
ue". By its own terms, the law does not make all simu- ton, DC, wrote that although the Supreme Court’s deci-
lated child pornography illegal, only that found to be ob- sion has been criticized by some, he believes it correct-
scene or lacking in serious value.[citation needed] ly enables legal personnel to fight crime networks where
In Richmond, Virginia, on December 2005, Dwight child pornography is made and sold.[18] Child pornogra-
Whorley was convicted under 18 U.S.C. 1466A for using phy is illegal and it does not have to be looked at in terms
a Virginia Employment Commission computer to receive of the typical guidelines of the First Amendment, because
"...obscene Japanese anime cartoons that graphically de- it is illegal due to the harm it creates to children when
picted prepubescent female children being forced to en- child pornography is made, sold and owned.[18]
gage in genital-genital and oral-genital intercourse with
adult males."[5][6][7] He was also convicted of possessing
child pornography involving real children. He was sen-
Further developments
tenced to 20 years in prison.[8] In 1994, the U.S. Court of Appeals for the 3rd Circuit
On December 18, 2008 the Fourth Circuit Court of Ap- ruled that the federal statute contains no requirement
peals affirmed the conviction.[9] The court stated that "it that genitals be visible or discernible. The court ruled
is not a required element of any offense under this sec- that non-nude visual depictions can qualify as lascivious
tion that the minor depicted actually exists." Attorneys exhibitions and that this construction does not render
for Mr. Whorley have said that they will appeal to the the statute unconstitutionally overbroad.[19]
Supreme Court.[10][11] In October 2008, the Comic Book Legal Defense Fund
The request for en banc rehearing of United States v. became involved in a case defending 38-year-old Iowa
Whorley from the Court of Appeals was denied on June comic collector named Christopher Handley, with Eric
15, 2009. A petition for writ of certiorari was filed with Chase of its United Defense Group providing his legal de-
the Supreme Court on September 14, 2009 and denied on fense.[20] Chase argued, "there are no actual children. It
January 11, 2010 without comment.[12] was all very crude images from a comic book."[21] This is
related to obscenity charges involving pornography de-
picting minors, being applied to a fictional comic book.
Section 2252A On this, Chase said, "This prosecution has profound im-
The PROTECT Act also amended 18 U.S.C. § 2252A, which plications in limiting the First Amendment for art and
was part of the original CPPA. The amendment added artists, and comics in particular that are on the cutting
paragraph (a)(3), which criminalizes knowingly advertis- edge of creativity. It misunderstands the nature of avant-
ing or distributing "an obscene visual depiction of a mi- garde art in its historical perspective and is a perversion
nor engaging in sexually explicit conduct; or a visual de- of anti-obscenity laws."[22] Charles Brownstein of the
piction of an actual minor engaging in sexually explicit CBLDF commented, "The government is prosecuting a
conduct." The law draws a distinction between obscene private collector for the possession of art, in the past,
depiction of any minor, and mere depiction of an actual CBLDF has had to defend the First Amendment rights of
minor. retailers and artists, but never before have we experi-
The bill addresses various aspects of child abuse, pro- enced the federal government attempting to strip a citi-
hibiting some illustrations and computer-generated im- zen of his freedom because he owned comic books."[23]
ages depicting children in a pornographic man- Judge Gritzner was petitioned to drop some of the
ner.[13][14][15] Provisions against virtual child pornogra- charges, but instead ruled that 2 parts of the PROTECT
phy in the Child Pornography Prevention Act of 1996 Act criminalizing "a visual depiction of any kind, includ-
were ruled unconstitutional by the U.S. Supreme Court ing a drawing, cartoon, sculpture, or painting" were un-
in 2002 on the grounds that the restrictions on speech constitutional. Handley still faces an obscenity
were not justified by a compelling government interest charge.[24] The motion was initially heard on June 24,
(such as protecting real children). The provisions of the 2008,[25] but was not widely publicized prior to the Fund’s
PROTECT Act instead prohibit such material if it qualifies involvement. CBLDF leader Neil Gaiman remarked on
as obscene as defined by the Miller Test; the Supreme how this could apply to his work The Doll’s House, saying,
2
From Wikipedia, the free encyclopedia Child pornography laws in the United States
"if you bought that comic, you could be arrested for it? [9] Text of 4th circuit court of appeals decision on
That’s just deeply wrong. Nobody was hurt. The only United States v. Whorley
thing that was hurt were ideas." He then initiated a per- [10] Court of Appeals Affirms Cartoons of Child Porn
fume sales campaign to raise funds for Handley’s legal Are Illegal - December 19, 2008 Fox News, retrieved
defense.[26][27] Jan 4, 2009
Handley was convicted in May 2009 as the result of [11] Child-porn cartoon conviction upheld - Federal
entering a guilty plea bargain at the recommendation of appeals panel rules porn is porn even if it’s drawn -
Chase, under the belief that the jury chosen to judge him Dec 20, 2008 MSNBC, retrieved Jan 4, 2009
would not acquit him of the obscenity charges if they [12] "Docket No. 09-6521 - Dwight Edwin Whorley v.
were shown the images of question.[28] United States". Supreme Court of the United States.
In October 2010, a 33 year old Idaho man, Steven http://www.supremecourt.gov/
Kutzner, entered into a plea agreement concerning im- Search.aspx?FileName=/docketfiles/09-6521.htm.
ages of child characters from the American animated [13] "Fact Sheet PROTECT Act". Department of Justice.
television show, The Simpsons engaged in sexual April 30, 2003. http://www.usdoj.gov/opa/pr/
acts.[29][30] 2003/April/03_ag_266.htm.
[14] "Full Text of S.151 - PROTECT Act (Enrolled as
References Agreed to or Passed by Both House and Senate)".
Government Printing Office.
[1] "Remarks of Arnold I Burns Before the Florida Law http://frwebgate.access.gpo.gov/cgi-bin/
Enforcement Committee on Obscenity, Organized getdoc.cgi?dbname=108_cong_public_laws&docid=f:publ021.108.
Crime and Child Pornography". NCJ 109133. National [15] "Track.us. S. 151--108th Congress (2003):
Institute of Justice. 1987-12-03. Prosecutorial Remedies and Other Tools to End the
http://www.ncjrs.gov/App/Publications/ Exploitation of Children Today Act of 2003".
abstract.aspx?ID=109133. GovTrack.us (database of federal legislation).
[2] Sex Offenses Against Children: Findings and http://www.govtrack.us/congress/
Recommendations Regarding Federal Penalties (as bill.xpd?bill=s108-151&tab=summary. Retrieved
directed in the Sex Crimes Against Children Prevention 2008-09-01.
Act of 1995, Section 6, Public Law 104-71). United States [16] nytimes.com, Supreme Court Upholds Child
Sentencing Commission. June 1996. pp. p9. Pornography Law
http://www.ussc.gov/r_congress/SCAC.HTM. [17] www.supremecourt.gov,UNITED STATES v.
[3] "2257 Reporting Requirements". eff.org Internet WILLIAMS, No. 06–694, Decided May 19, 2008
Law Treatise. http://ilt.eff.org/index.php/ [18] ^ Marsh, J. R. (2008-07-11). "Virtual Child Porn and
2257_Reporting_Requirements. Retrieved February Child Exploitation". childlaw.us.
28, 2011. http://www.childlaw.us/2008/07/why-offering-
[4] "Bush signs child protection bill". CNN. April 30, virtual-child-por.html. Retrieved 2008-07-13.
2003. http://www.cnn.com/2003/ALLPOLITICS/04/ [19] United States v. A Knox, 32 F3d 733 (June 9, 1994).
30/bush.amber. Retrieved 2003-05-01. [20] CBLDF to Serve as Special Consultant in PROTECT
[5] "Richmond man first convicted under expanded Act Manga Case, published by AnimeNewsNetwork
child-porn law". http://www.timesdispatch.com/ on October 9, 2008,
servlet/Satellite?pagename=RTD/MGArticle/ [21] Lawyer Indicates Manga in Iowa Obscenity Case are
RTD_BasicArticle&c=MGArticle&cid=1128768481527. Yaoi, published by AnimeNewsNetwork on
Retrieved 2006-01-12. November 24, 2008
[6] Flannery, Sara E.; Damon A. King (November 2006). [22] American Faces 20 Years Over Loli Manga by
"Prosecuting Obscene Representations of the Artefact of Sankaku Complex.
Sexual Abuse of Children" (PDF). Internet [23] CBLDF in Manga Obscenity Case, Assisting Defense
Pornography and Child Exploitation. United States of Collector by ICV2, October 10, 2008
Department of Justice. pp. 50. [24] Iowa Collector Charged for Allegedly Obscene
http://www.usdoj.gov/usao/eousa/ Manga from AnimeNewsNetwork on October 10,
foia_reading_room/usab5407.pdf. Retrieved 2008
2007-02-12. [25] Court transcript from IASD.USCourts.gov
[7] 20 Years for Loli Manga (converted from PDF to HTML by Google)
[8] "Virginia Man Sentenced in Landmark Obscenity [26] Neil Gaiman On The ‘Obscenity’ Of Manga Collector
Case". Federal Bureau of Investigation. Christopher Handley’s Trial by Jennifer Vineyard
http://www.fbi.gov/page2/march06/ of MTV Splashpage, November 24, 2008
obscenity031006.htm. Retrieved 2006-09-15. [27] Why defend freedom of icky speech? December 1,
(March 10, 2006) 2008
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From Wikipedia, the free encyclopedia Child pornography laws in the United States
[28] Manga Collection Ruled "Child Pornography" By [29] Former teacher pleads guilty to downloading
US Court May 28, 2009 ’Simpsons’ porn Oct 14, 2010
[30] Steven Kutzner Plea Agreement October 4, 2010
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