Child Pornography: - Center for Problem-Oriented Policing

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Finding that the prohibition on child pornography is content-based, the court applied the strict scrutiny standard. Any restriction on speech, therefore, had to be based on a compelling governmental interest and narrowly tailored to promote that interest. Although the court looked to legislative history to determine compelling reasons, it found that "any victimization that may arise from pedophiles' sexual responses to pornography apparently depicting children engaging in explicit sexual activity is not a sufficiently compelling justification for CPPA's speech restrictions." 186 The court reasoned that "to hold otherwise enables the criminalization of foul figments of creative technology that do not involve any human victim in their creation" or presentation. 187 Finding insufficient compelling interests, the court did not address the "narrowly tailored" requirement. 188 The dissenting opinion in The Free Speech Coalition v. Reno, however, argued that the government did present compelling evidence that virtual child pornography causes "real harm to real children." 189 The dissent cited to the 13 detailed legislative findings provided by Congress to explain why virtual pornography must be prohibited. 190 The dissent then provided five reasons for disagreeing with the majority's findings. First the dissent looked to Osborne v. Ohio 191 in which the Court relied not only on the harm caused to children in the production of child pornography but also on the harm caused when child pornography is used to seduce or coerce them into sexual activity. The dissent argued that the Osborne Court recognized that protecting children who are not actually pictured in the pornography is a legitimate and compelling state interest. Thus virtual child pornography could legitimately be prohibited. Second the dissent noted that the Supreme Court had already endorsed many of Congress' other justifications such as the state's legitimate interest in destroying the childpornography market. 192 In passing the CPPA Congress reasoned that the statute would encourage people to destroy all forms of child pornography and thereby reduce the market for such material. Third the dissent argued that the majority did not address other justifications advanced by Congress, regardless of whether the Supreme Court has specifically endorsed them. The dissent cited both Ferber and Osborne in which the Supreme Court stated, "[I]t is evident beyond the need for elaboration that a State's interest in 'safeguarding the physical and psychological well-being of a minor' is 'compelling.'" 193 Fourth the dissent argued that child pornography is speech without redeeming social value. Relying on a series of cases holding that the First Amendment does not protect certain categories of speech that are "utterly without redeeming social importance," the dissent placed child pornography among them. 194 Stating that the only distinction between real and virtual child pornography is whether actual children are used in the production of the visual depictions, the dissent argued that using virtual children in its production "does not somehow transform virtual child pornography into meaningful speech." 195 And fifth the dissent argued that the proper analysis of the CPPA is not a strict scrutiny approach but rather a balancing of the government's interest in regulating child pornography against the material's limited social value. It stated, "Since the balance of competing interests tips in favor of the government, virtual child pornography should join the ranks of real child pornography as a class of speech outside the protection of the First Amendment." 196 In addition the dissent disagreed with the majority's finding that the CPPA is overbroad, rejecting the argument that the "appears-to-be" language would capture artistic expressions CHILD PORNOGRAPHY: THE CRIMINAL-JUSTICE-SYSTEM RESPONSE- 15
such as paintings, drawings, and sculptures. Relying again on the legislative history, the dissent stated that the CPPA clearly only extends the existing prohibitions on real child pornography to a "narrow class of computer-generated pictures easily mistaken for real photographs of real children" 197 —those that are virtually indistinguishable from real child pornography. In addition to the First Circuit's decision inHilton, the Eleventh Circuit and United States District Court for the Eastern District of Texas have both rejected challenges to the CPPA. 198 In Reno v. Free Speech Coalition 199 the Supreme Court recently granted certiorari and agreed to hear an appeal of the case to address the constitutionality of the CPPA's amendments to federal child-pornography law. The Court's ruling in that case should eventually resolve the conflicting lower-court decisions. After the CPPA, Congress passed the Protection of Children from Sexual Predators Act of 1998 (PCSPA), 200 which comprehensively addressed many child-sexual-abuse issues in addition to child pornography. The Act prohibited use of interstate facilities to transmit identifying information about a child for criminal sexual purposes 201 and increased penalties for many offenses against children and for repeat offenders, 202 among other provisions. 16- CHILD PORNOGRAPHY: THE CRIMINAL-JUSTICE-SYSTEM RESPONSE
Page 1 and 2: Child Pornography: The Criminal-Jus
Page 3 and 4: Acknowledgments This publication wo
Page 5 and 6: Investigating Child Pornography Cas
Page 7 and 8: eing is the subject. With the help
Page 9 and 10: The Child Pornographer: Consumer, C
Page 11 and 12: professions and social classes. Des
Page 13 and 14: victims are being recruited, seduce
Page 15 and 16: coupled with extortion, can make re
Page 17 and 18: Legal Analysis How does the legal s
Page 19: the court ruled that the requiremen
Page 23 and 24: Another area of legislative action
Page 25 and 26: For instance Section 2251 may apply
Page 27 and 28: Other Applicable Federal Statutes C
Page 29 and 30: For example federal sentencing guid
Page 31 and 32: State Law Every state and the Distr
Page 33 and 34: As demonstrated by Alaska's statute
Page 35 and 36: may only be prosecuted for a single
Page 37 and 38: Affirmative Defenses A number of st
Page 39 and 40: the state Court of Appeals has foun
Page 41 and 42: • member states must encourage us
Page 43 and 44: First World Congress Against Commer
Page 45 and 46: Seized child pornography may help g
Page 47 and 48: When the warrant is based on the su
Page 49 and 50: United States Customs Service Unite
Page 51 and 52: Federal Bureau of Investigation: Cr
Page 53 and 54: Sexual Assault Felony Enforcement T
Page 55 and 56: Child Sexual Exploitation Strike Fo
Page 57 and 58: Benefits of Law-Enforcement Network
Page 59 and 60: it seeks new ways to control the fl
Page 61 and 62: ecuting child-sexual-exploitation c
Page 63 and 64: Conduct Additional Research While a
Page 127 and 128:
Endnotes 1. The Internet isaglobal
Page 129 and 130:
48. Lanning, CHILD MOLESTERS, supra
Page 131 and 132:
99. Belanger, Albert J. et al., Typ
Page 133 and 134:
139. RONALD B. FLOWERS, CHILDREN AN
Page 135 and 136:
207. See 18U.S.C. § 2252(a)(4) (19
Page 137 and 138:
117, or under the laws of any State
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(a) Whoever knowingly persuades, in
Page 141 and 142:
267. Id. 268. U.S.S.G. § 2G2.2 (b)
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pornography via Internet did not vi
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376. Sexual Abuse of Children, Chil
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424. INVESTIGATION AND PROSECUTION
Page 149 and 150:
473. Id. at 31. 474. Id. 475. Id. 4
Page 151 and 152:
541. Whitcomb & Eastin, supra note
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Fergusson, David M., L. John Horwoo
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McLeer, Susan V., et al., Psychopat
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Resources on the Topic of Child Por
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Enough is Enough (888) 2Enough (1.8
Page 161 and 162:
Maryland Maryland State Police Atte
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National Center for Missing & Explo
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