Child pornography laws in the United States

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,^[1] 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.^[2] 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.

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 Amendment 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.

Record-keeping requirements

Main article: Child Protection and Obscenity Enforcement Act

The initial iteration of 18 U.S.C. § 2257, 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). ^[3]

Simulated pornography

Main article: Simulated pornography

Simulated child pornography was made illegal with the Child Pornography Prevention Act of 1996. 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."

1466A - Obscene visual representations of the sexual abuse of children

See also: Legal status of cartoon pornography depicting minors

In response to the demise of the CPPA, on April 30, 2003 President George W. Bush signed into law the PROTECT Act of 2003 (also dubbed the Amber Alert Law).^[4]

The law enacted 18 U.S.C. § 1466A, 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.^{[citation needed]}

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."^[5][6][7] He was also convicted of possessing child pornography involving real children. He was sentenced to 20 years in prison.^[8]

On December 18, 2008 the Fourth Circuit Court of Appeals affirmed the conviction.^[9] 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.^[10][11]

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.^[12]

Section 2252A

The PROTECT Act also amended 18 U.S.C. § 2252A, 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.^[13][14][15] 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.^[16][17] 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.^[18] 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.^[18]

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.^[19]

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.^{[20][dead link]} Chase argued, "there are no actual children. It was all very crude images from a comic book."^[21] 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."^[22] 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."^[23]

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.^[24] The motion was initially heard on June 24, 2008,^[25] 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.^[26][27]

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.^[28]

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.^[29][30]

References

1. ^ "Remarks of Arnold I Burns Before the Florida Law Enforcement Committee on Obscenity, Organized Crime and Child Pornography". NCJ 109133. National Institute of Justice. 1987-12-03. http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=109133. 
2. ^ Sex Offenses Against Children: Findings and Recommendations Regarding Federal Penalties (as directed in the Sex Crimes Against Children Prevention Act of 1995, Section 6, Public Law 104-71). United States Sentencing Commission. June 1996. pp. p9. http://www.ussc.gov/r_congress/SCAC.HTM. 
3. ^ "2257 Reporting Requirements". eff.org Internet Law Treatise. http://ilt.eff.org/index.php/2257_Reporting_Requirements. Retrieved February 28, 2011. 
4. ^ "Bush signs child protection bill". CNN. April 30, 2003. http://www.cnn.com/2003/ALLPOLITICS/04/30/bush.amber. Retrieved 2003-05-01. 
5. ^ "Richmond man first convicted under expanded child-porn law". http://www.timesdispatch.com/servlet/Satellite?pagename=RTD/MGArticle/RTD_BasicArticle&c=MGArticle&cid=1128768481527. Retrieved 2006-01-12. ^{[dead link]}
6. ^ Flannery, Sara E.; Damon A. King (November 2006). "Prosecuting Obscene Representations of the Sexual Abuse of Children" (PDF). Internet Pornography and Child Exploitation. United States Department of Justice. pp. 50. http://www.usdoj.gov/usao/eousa/foia_reading_room/usab5407.pdf. Retrieved 2007-02-12. 
7. ^ 20 Years for Loli Manga
8. ^ "Virginia Man Sentenced in Landmark Obscenity Case". Federal Bureau of Investigation. http://www.fbi.gov/page2/march06/obscenity031006.htm. Retrieved 2006-09-15. ^{[dead link]} (March 10, 2006)
9. ^ Text of 4th circuit court of appeals decision on United States v. Whorley
10. ^ Court of Appeals Affirms Cartoons of Child Porn Are Illegal - December 19, 2008 Fox News, retrieved Jan 4, 2009
11. ^ Child-porn cartoon conviction upheld - Federal appeals panel rules porn is porn even if it's drawn - Dec 20, 2008 MSNBC, retrieved Jan 4, 2009
12. ^ "Docket No. 09-6521 - Dwight Edwin Whorley v. United States". Supreme Court of the United States. http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/09-6521.htm. 
13. ^ "Fact Sheet PROTECT Act". Department of Justice. April 30, 2003. http://www.usdoj.gov/opa/pr/2003/April/03_ag_266.htm. 
14. ^ "Full Text of S.151 - PROTECT Act (Enrolled as Agreed to or Passed by Both House and Senate)". Government Printing Office. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_public_laws&docid=f:publ021.108. 
15. ^ "Track.us. S. 151--108th Congress (2003): Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003". GovTrack.us (database of federal legislation). http://www.govtrack.us/congress/bill.xpd?bill=s108-151&tab=summary. Retrieved 2008-09-01. 
16. ^ nytimes.com, Supreme Court Upholds Child Pornography Law
17. ^ www.supremecourt.gov,UNITED STATES v. WILLIAMS, No. 06–694, Decided May 19, 2008
18. ^ ^{a b} Marsh, J. R. (2008-07-11). "Virtual Child Porn and Child Exploitation". childlaw.us. http://www.childlaw.us/2008/07/why-offering-virtual-child-por.html. Retrieved 2008-07-13. 
19. ^ United States v. A Knox, 32 F3d 733 (June 9, 1994).
20. ^ CBLDF to Serve as Special Consultant in PROTECT Act Manga Case, published by AnimeNewsNetwork on October 9, 2008,
21. ^ Lawyer Indicates Manga in Iowa Obscenity Case are Yaoi, published by AnimeNewsNetwork on November 24, 2008
22. ^ American Faces 20 Years Over Loli Manga by Artefact of Sankaku Complex.
23. ^ CBLDF in Manga Obscenity Case, Assisting Defense of Collector by ICV2, October 10, 2008
24. ^ Iowa Collector Charged for Allegedly Obscene Manga from AnimeNewsNetwork on October 10, 2008
25. ^ Court transcript from IASD.USCourts.gov (converted from PDF to HTML by Google)
26. ^ Neil Gaiman On The ‘Obscenity’ Of Manga Collector Christopher Handley’s Trial by Jennifer Vineyard of MTV Splashpage, November 24, 2008
27. ^ Why defend freedom of icky speech? December 1, 2008
28. ^ Manga Collection Ruled "Child Pornography" By US Court May 28, 2009
29. ^ Former teacher pleads guilty to downloading 'Simpsons' porn Oct 14, 2010
30. ^ Steven Kutzner Plea Agreement October 4, 2010