Child pornography

Child pornography is material that visually depicts sexual conduct by children. It is unprotected by the First Amendment even when it is not obscene; i.e., child pornography need not meet the Miller test to be banned. Because of the legislative interest in destroying the market for the exploitative use of children, there is no constitutional right to possess child pornography even in the privacy of one’s own home.

In 1996, Congress enacted the Child Pornography Protection Act (CPPA), which defined child pornography to include visual depictions that appear to be of a minor, even if no minor is actually used. The Supreme Court, however, declared the CPPA unconstitutional to the extent that it prohibited pictures that are produced without actual minors.

Pornography that uses actual children may be banned because laws against it target “[t]he production of the work, not its content”; the CPPA, by contrast, targeted the content, not the production. The government “may not prohibit speech because it increases the chance an unlawful act will be committed ‘at some indefinite future time.’” In 2003, Congress responded by enacting Title V of the PROTECT Act, P.L. 108-21, which prohibits any “digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” It also prohibits “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 lacks serious literary, artistic, political, or scientific value.