Child Pornography: - Center for Problem-Oriented Policing

the court ruled that the requirement was sufficiently narrowly tailored and sufficiently furthered
a governmental interest in abating child pornography to withstand scrutiny. 173
Until 1990 federal law addressed only the production, sale, and distribution of child
pornography. Under the Supreme Court's decision in Stanley v. Georgia, 174 the government
could prohibit the sale and distribution of obscene material but the prohibition on private
possession of such material violated the First Amendment's guarantee of "free thought and
expression" and the Fourth Amendment's guarantee of privacy rights. 175
In the late 1980s, however, states started passing statutes prohibiting the mere possession
of child pornography. These statutes were immediately challenged under Stanley and eventually
led to the 1990 Supreme Court decision in Osborne v. Ohio. 176 In Osborne the Supreme
Court held that the state's interest in preventing the sexual abuse of children justified a limitation
on the right to possess and view obscene materials in the privacy of a person's own home
under the First Amendment as set forth in Stanley. The state could prohibit the mere possession
of child pornography as long as its goal was to protect children and not to regulate
people's thoughts and expressions. 177 Following the Osborne decision Congress criminalized
the possession of three or more pieces of child pornography through the Child Protection
Restoration and Penalties Enhancement Act of 1990. 178
In 1996 Congress passed two additional pieces of legislation aimed at protecting children
from computer-based exploitation. They are the Child Pornography Prevention Act (CPPA)
and Communications Decency Act (CDA). Both engendered constitutional challenges.
The Child Pornography Prevention Act of 1996 179 responded to the increase in technological
capabilities to produce images that look like children by amending the definition of
child pornography to include any visual depiction that "is, or appears-to-be, of a
minor engaging in sexually explicit conduct." 180 It also banned visual depictions that are
"advertised, promoted, presented, described[,] or distributed in such a manner that conveys
the impression" that they contain sexually explicit depictions of minors. 181
Among Congress' findings accompanying the CPPA was the recognition that new photographic
and computer imaging technologies make it possible to produce visual depictions of
what appear to be children engaging in sexual conduct that are virtually indistinguishable
from photographic images of actual children engaging in sexually explicit conduct. Congress
noted that this technology could be used to alter innocent pictures of children to create visual
depictions of those children engaging in sexual conduct. 182
Several cases have challenged the CPPA on constitutional grounds. In United States v.
Hilton the First Circuit Court of Appeals overturned a lower court ruling that the statute was
impermissibly vague and overbroad. The First Circuit found that the CPPA "neither impinges
substantially on protected expression nor is so vague as to offend due process." 183
More recently the Ninth Circuit Court of Appeals in The Free Speech Coalition v. Reno 184
overturned a lower-court ruling upholding the CPPA and found that the provisions criminalizing
all visual depictions that "appear-to-be" or "convey-the-impression" of child pornography
violate First Amendment free-speech protections.
At issue in The Free Speech Coalition v. Reno were the CPPA's amendments to the definition
of child pornography under Title 18 of the United States Code: Section 2256(8)(B)
which includes sexually explicit depictions that appear to be minors, and Section 2256(8)(D)
which includes visual depictions that are "advertised, promoted, presented, described[,] or
distributed in such a manner that conveys the impression" that they contain sexually explicit
depictions of minors. 185
14 - CHILD PORNOGRAPHY: THE CRIMINAL-JUSTICE-SYSTEM RESPONSE