101 Colum. L. Rev. 209, *

Copyright (c) 2001 The Columbia Law Review

Columbia Law Review

March, 2001

This article originally appeared at 101 Colum. L. Rev. 209 (2001). Reprinted by permission.

ARTICLE: THE PERVERSE LAW OF CHILD PORNOGRAPHY

Amy Adler*

* Associate Professor, New York University School of Law. For helpful comments,

I am indebted to Harry Adler, Ed Baker, Mary Anne Case, Anne Coughlin, Michael

Dorf, Chris Eisgruber, Dan Filler, Barry Friedman, David Garland, Abner Greene,

Janet Halley, Marcel Kahan, Larry Kramer, Jody Kraus, Liz Magill, Pearson Marx,

Geoffrey Miller, Dot Nelkin, Rick Pildes, Robert Post, David Richards, Neil

Richards, Larry Sager, Eva Saks, Rip Verkerke, and Jonathan Vogel. I am also

grateful to the participants of workshops at Harvard Law School, the University

of Virginia Law School, the Colloquium on Constitutional Theory at the N.Y.U.

School of Law, and the participants of the Conference on Gender-Based Censorship

at the University of Michigan Institute for Research on Women and Gender, where

I presented an earlier draft of this Article. I thank Keith Buell for his

amazing contributions as a research assistant. I also thank Gretchen Feltes in

the New York University Law Library for outstanding library assistance. I

dedicate this Article to the memory of my father, Harry R. Adler (1932-1999),

who encouraged and inspired me in every way and who would have liked to see the

final draft.

TEXT:

[*209] [*210] Introduction

But most of us carry in our hearts the Jocasta who begs Oedipus for God's sake

not to enquire further.

- letter of Schopenhauer to Goethe, Nov. 11, 1815 1

Child pornography law is the least contested area of First Amendment

jurisprudence. In a way, this should come as no surprise. There is not an

acceptable "liberal" position when it comes to the sexual victimization of

children. What could possibly be controversial about laws that prohibit pictures

of children forced into sex acts? 2 Even mentioning the First Amendment as a

problem in this context seems inappropriate and cold. In fact, if you mention

the First Amendment in this context, someone might accuse you of being a

pedophile. As a lawyer who represents abused children put it:

In truth, when it comes to child pornography, any discussion of censorship is a

sham, typical of the sleight of hand used by organized pedophiles as part of

their ongoing attempt to raise their sexual predations to the level of civil

rights. 3

In spite of such attacks, in this Article I raise questions about the censorship

imposed by child pornography laws. I argue that these laws, intended to protect

children from sexual exploitation, threaten to reinforce the very problem they

attack. The legal tool that we designed to liberate children from sexual abuse

threatens to enslave us all, by constructing a world in which we are enthralled

- anguished, enticed, bombarded - by the spectacle of the sexual child.

Child pornography law is a remarkably recent invention. Not until 1982 did the

Supreme Court consider the distinct problem of child pornography, create it as a

special category of constitutional inquiry, and expel it from the protection of

the First Amendment. 4 Since its conception, legal scholars have largely ignored

it as an area of inquiry. 5 Unlike [*211] the burgeoning academic discourse

that has grown up around obscenity law and adult pornography, the law of child

pornography has been left alone to occupy its own peculiar and unpleasant realm.

Yet, left to its own devices, child pornography has spawned an extraordinary and

troubling body of case law. 6 As legal scholars occupy themselves with more

tasteful topics - and ones that may appear to present more serious challenges to

free speech jurisprudence - the law of child pornography has undergone a

significant expansion, largely unchecked by critical inquiry. From its

relatively recent birth, the law of child pornography has come into adulthood, 7

and an ungainly creature it is.

The dramatic expansion of child pornography law has not occurred in a vacuum.

Rather, it has been caught up in a cultural maelstrom. As I document below,

since the late 1970s, the problem of child sexual abuse has been "discovered" as

a malignant cultural secret, wrenched out of its silent hiding place, and

elevated to the level of a "national emergency." 8 At the center of this dark

secret lurks child pornography, constituting both a hideous product - and some

would say cause - of child molestation. 9

Child pornography law presents the opportunity for a case study of how

censorship law responds to and shapes a cultural crisis. We have two [*212]

corresponding events. On the one hand, we have the "discovery" in the late 1970s

of the twin problems of child sexual abuse and child pornography, and the

continuation of the problems to the point where they have reached the level of

an ongoing, "ever-widening" crisis. 10 On the other hand, we have child

pornography law. Born in the same period, created to solve the problem of child

sexual abuse, child pornography law too has grown dramatically in the past two

decades, expanding and proliferating along with the underlying problem that it

targets. Yet, curiously, the law's expansion has not solved the problem, but

only presided over its escalation. As child pornography law has expanded since

the late 1970s, so has a "culture of child abuse," 11 a growing "panic" 12 about

the threat to children.

What, if any, is the relationship between these two concurrent phenomena - the

expansion of child pornography law and the growing problem of child sexual

abuse, including child pornography? Does their correlative temporal connection

allow us to draw any conclusions about a possible causal relationship?

There is a standard, conventional explanation for this correlation. This account

casts law in a reactive stance: As the sexual exploitation of children, or at

least our awareness of the problem, 13 has risen, legislatures and courts have

responded by passing and upholding tougher child pornography laws. As the crisis

has surged, so has the law. In this view, cultural horror drives law to play a

game of catch-up. Law is always a step behind the problem, racing to keep pace

with a burgeoning social crisis.

I am sure that is at least part of what is going on. But in this Article, I

propose two alternative readings - readings that do not exclude the conventional

account described above, but supplement it. In the first reading, I explore the

possibility that certain sexual prohibitions invite their own violation by

increasing the sexual allure of what they forbid. I suggest that child

pornography law and the eroticization of children exist in a dialectic of

transgression and taboo: The dramatic expansion of child pornography law may

have unwittingly heightened pedophilic desire.

I then turn to a second reading, which reveals the previous one to be an only

partially satisfactory account. In the second reading, I view law and the

culture it regulates not as dialectical opposites, but as intermingled. Child

pornography law may represent only another symptom of and not a solution to the

problem of child abuse or the cultural fascination with sexual children. The

cross purposes of law and culture that I describe above (law as prohibition,

which both halts and incites desire) [*213] may mask a deeper harmony between

them: The legal discourse on prohibiting child pornography may represent yet

another way in which our culture drenches itself in sexualized children.

Child pornography law explicitly requires us to take on the gaze of the

pedophile in order to root out pictures of children that harbor secret

pedophilic appeal. 14 The growth of child pornography law has opened up a whole

arena for the elaborate exploration of children as sexual creatures. Cases

require courts to engage in long, detailed analyses of the "sexual coyness" or

playfulness of children, and of their potential to arouse. 15 Courts have

undertaken Talmudic discussions of the meaning of "pubic area" and

"discernibility" of a child's genitals in a picture at issue. 16 But even when a

child is pictured as a sexual victim rather than a sexual siren, the child is

still pictured as sexual. Child pornography law becomes in this view a vast

realm of discourse in which the image of the child as sexual is preserved and

multiplied.

The point of this Article is that laws regulating child pornography may produce

perverse, unintended consequences and that the legal battle we are waging may

have unrecognized costs. 17 I do not doubt, however, that child pornography law

has substantial social benefits. In fact, I do not doubt that these benefits

might outweigh the costs detailed. I nonetheless focus on these costs as a means

to unsettle the confident assumption of most courts, legislators, and academics

that the current approach to child pornography law is unequivocally sound. I

question their conviction that the more regulation we impose the more harm we

avert. 18 Ultimately, I raise questions about the nature of censorship itself.

Part I of this Article sets out a cultural and historical claim. First, I

establish that child pornography is a subset of the larger problem of child

[*214] sexual abuse and that the two are inextricable. Second, I argue that our

culture has become preoccupied with child sexual abuse and child pornography in

a way that it did not used to be. The preoccupation is only a recent phenomenon,

the product of a dramatic shift in the way we view children. In Part II, I trace

the historical development of the law of child pornography. Here I outline how

the cultural transformation in our notion of childhood sexual vulnerability has

coincided with the birth and dramatic expansion of the law. In Part III, I

explore the first of two causal accounts of the chronological correlation

between the regulation of child pornography and the increase in the crisis of

child sexual abuse. I present the argument that the burgeoning law of child

pornography may invite its own violation. In Part IV, I present the final

reading of the relationship between child pornography law and culture: The law

may perpetuate and escalate the sexual representation of children that it seeks

to constrain.

In a sense, even to ask the questions I raise in this Article is to open a

Pandora's Box. Ultimately, they challenge deeply held assumptions about the

nature of censorship, and about the relationship between law and the culture it

regulates. Not only do these questions suggest the possibility that some kinds

of rules are inevitably counterproductive, but the questions also place law in a

different light, as an institution that actively

creates sexual culture rather than an institution that merely responds to it.

I will limit my discussion of these problems to the finite realm of the law of

child pornography. Although I strongly suspect the discussion may point to more

universal application, I use the law of child pornography as a case study

through which to contemplate the peculiar problems that present themselves when

law attempts to govern representations of sexual desire. 19

I. The Cultural Crisis of Child Sexual Abuse 20

Attempts to evaluate the threat posed by [speech] inevitably become involved

with ... the relative confidence or paranoia of the age.

- John Hart Ely, Democracy and Distrust 21 [*215]

Once the "best kept secret" of our society, 22 the sexual abuse of children has

now emerged into the light of day - a topic regularly recurring in movies of the

week, 23 political debate, 24 television talk shows, 25 and celebrity

confessions. 26 At the center of this discovery lies child pornography, which

the Supreme Court considers a gruesomely potent subset of child sexual abuse. 27

The Court's child pornography jurisprudence depends on this idea: Child

pornography is child sexual abuse. 28 Thus, at the very start of its inquiry

into child pornography, the Court approvingly quoted one scholar who categorized

child pornography as "an even greater threat to [*216] the child victim than

... [routine] sexual abuse." 29 According to the Court, child pornography not

only documents an underlying act of abuse - the sexual use of a child - but the

recording of the act also becomes a collateral violation against the child's

dignity. The circulation of the pictures comes to "haunt" the child, so that the

initial act of abuse takes on a life of its own, exposing the child to perpetual

reinjury. 30

There are further connections between child pornography and child sexual abuse.

Some view child pornography as not merely the product, but also the cause of

abuse. First, child pornography may be a tool of seduction. The Supreme Court

has noted that "pedophiles use child pornography to seduce other children into

sexual activity." 31 Second, child pornography may incite its viewers to molest

children. As Congress warned, it "whets [the] sexual appetites" of pedophiles,

creating their fantasies and stimulating them to victimize real children. 32

[*217] This conception of child pornography - that it is sexual abuse, that it

is in fact the core of sexual abuse - persists as the foundation of the approach

taken by courts, legislators, politicians, and the media. 33 For example, the

Attorney General's Commission on Pornography stated in its widely cited Report:

"There can be no understanding of the special problem of child pornography until

there is understanding of the special way in which child pornography is child

abuse." 34 Therefore, in this Article, I will consider child pornography as a

subset of the larger phenomenon of child sexual abuse and I will examine them in

tandem.

The statistics vary wildly on the incidence of both child sexual abuse and child

pornography. 35 What is clear is that social concern, indeed social panic, 36

about the problem of child sexual abuse and the closely [*218] related problem

of child pornography is a modern phenomenon that has grown significantly just

over the last two decades. Scholars now routinely talk of the "recent discovery"

37 of child sexual abuse, and of a vast, previously unknown underground network

of child pornography at its center.

This assertion that we only "recently discovered" these intertwined problems may

seem odd, given the public prominence that they have now attained. Declared a

"national emergency" in 1990, 38 the crisis over child sex abuse has taken

center stage in our culture and politics, as the worst of all possible evils. 39

Yet, in spite of our vigilance, the emergency shows no signs of abating: In

1993, the Secretary of Health and Human Services termed child abuse a "rising

epidemic." 40

Indeed, in our present culture, concern over the crisis is so widespread that

discussion of child sexual abuse may seem "inescapable." 41 Yet, this was not

always so. In fact, the awareness of child sexual abuse as a significant social

problem began only in the late 1970s, 42 a few years before the Supreme Court

heard New York v. Ferber, the case in which it created child pornography law as

a distinct constitutional category. The same is true for child pornography

itself. A decade prior to Ferber, child pornography was an unknown genre:

Writing of Ferber in the 1982 Supreme Court Review, Professor Fred Schauer

remarked that "the phenomenon of child pornography is so new that it would have

been impossible to predict even ten years ago." 43

Did child sexual abuse and child pornography spring out of nowhere in the 1970s?

First, I will consider what we know of sexual abuse more generally and then I

will turn to child pornography itself. I present these sections in significant

detail; my argument in Parts III and IV depends on [*219] an in-depth account

of the cultural context in which child pornography law operates.

A. The Discovery and Rise of Child Sexual Abuse

It is hard to state with confidence the actual statistics on the incidence of

child sexual abuse. The field of calculating its existence is rife with discord

and accusations. Of course, child sexual abuse exists. Yet, strangely, "experts"

in the field have divided into camps, with little that they agree on. Battles

rage over which statistics are correct; then battles rage over the

interpretation of the statistics. The figures are so uncertain that a recent

U.S. Department of Health and Human Services survey of studies on child sexual

abuse stunningly reported that "rates for victimization for girls range from 6

to 62 percent" of the population, for boys "from 3 to 24 percent." 44

In spite of this uncertainty, the same survey nonetheless concluded that the

number of reported cases of child sex abuse has risen dramatically in recent

years. 45 Yet, in the thicket of conflicting statistics, it is unclear whether

this rise represents an actual increase in incidents of

abuse, or is attributable to other factors, such as an increase in aware-

ness, better reporting, 46 expanding definitions of what constitutes child

sexual abuse, 47 or as some skeptics contend, a rise in cultural

[*220] hysteria. 48 Many have argued that the growing attention paid to the

problem of child sexual abuse stems from its power as a social metaphor, not

from a significant rise in incidence. For example, two child advocates write:

The choice of child abuse as an official social problem and the timing of its

occurrence cannot be explained solely in terms of the phenomenon of child

maltreatment itself. Rather, the emergence of child abuse as a key social

problem concerns, in part, its functions as a generative metaphor serving to

displace other collective unconscious anxieties and contradictions in American

society. 49

In the midst of the bitter debates about the incidence of child sexual abuse,

one thing is clear: There has been a dramatic explosion of discussion about

child sexual abuse in the last two decades. 50 Prior to that time, it was barely

recognized as a problem. 51 In fact, the term "child abuse" itself is of

relatively recent vintage. According to philosopher Ian Hacking, the term only

appeared in mainstream usage in 1962, in response to the alarming medical

discovery of "battered-child syndrome." 52 An instant [*221] media sensation,

the discovery of this new syndrome led to an "explosion in child abuse

literature" in the next decade. 53 These early accounts of child abuse focused

exclusively on physical violence against children. The sexual abuse of children

was viewed as a separate and far less pressing issue than child battering. Yet,

the two problems merged in public consciousness, 54 until gradually the sex

eclipsed the violence. 55 Hacking argues that by the mid-1970s, the problem of

child sexual abuse gained such prominence in our cultural landscape that it

changed the meaning we attach to the phrase "child abuse." Whereas the term

previously referred to violence, "child abuse" now primarily conjures up sexual

abuse or sexual violence. 56 In public discourse, regardless of actual practice,

sexual abuse of children is now the problem in child abuse.

A major force behind this shift in meaning was the feminist movement and its

vigorous campaign against incest. 57 In the mid-1970s, early "speakouts" by

women incest survivors propelled the movement, 58 unmasking the crime of incest

as a vast, hidden social crisis. 59 As the formerly "unspeakable" crime of

incest was taken up by feminists and thrust into the public sphere, soon it

merged into a larger issue: the sexual abuse of children more generally, whether

inside or outside the family.

Also fueling the discovery of child sexual abuse was a theoretical revolution in

psychiatry. In 1984 two prominent books by psychoanalysts [*222] appeared that

attacked the foundation of Freudian theory: the Oedipus complex. 60 Early in his

career, Freud had advanced a "seduction theory" that he later rejected. In the

rejected theory, Freud had supposed that many of his women patients were ill

because they had been molested as children, usually by their fathers. But in

1897, Freud changed his mind, and so changed the course of psychoanalysis: His

patients' abuse was not necessarily real; it usually existed only in fantasy. 61

The consistent reports by his patients of childhood "seductions" were

manifestations of their unconscious oedipal sexual wishes. Freud's abandonment

of the seduction theory therefore allowed him to uncover the centerpiece of his

theory of childhood sexual development.

The 1984 books flatly argued that Freud was wrong, or rather, that he had been

right the first time. The books began a crisis in psychoanalysis that

reverberates to this day. 62 The authors argued that Freud's abandonment of the

seduction theory in favor of the Oedipus complex had been a betrayal. His

patients had not fantasized their molestation; they were victims of actual

sexual abuse that Freud ignored in order to build his theory. The new Freud

critics contended that psychoanalysis - and our modern understanding of the

human personality - are founded on a lie and a cover-up of child molestation.

Therapists, influenced by the attacks, began to search for hidden signs of child

sexual abuse in their patients. Many found what they were looking for. 63

Child sex abuse began to reveal itself not only in the home, but also in

institutions - schools and churches - and on the streets, where pedophiles

awaited unsuspecting children. 64 Anxiety over child sexual [*223] abuse has

continued to mount, to the point where cultural critics contend that we live in

a "culture of child abuse," 65 that nothing short of a "child abuse movement" is

afoot. 66

Our cultural preoccupation has taken root and blossomed in several different

fields of concern. 67 In the 1980s, the focus moved to day care centers. 68

Numerous prosecutions arose against day care center workers, based on children's

seemingly fantastical accounts of sexual and often satanic ritual abuse. 69 The

defendants were accused of molesting the children in weird and violent rites.

Prosecutors claimed that a major aim of these rituals (other than to worship

Satan), was to produce child pornography. [*224] None was ever found. 70 The

cases were the subject of intense media and judicial scrutiny. One of these

cases, the McMartin Preschool Trial in Los Angeles, ran for two years beginning

in 1984, making it the longest criminal trial in U.S. history. 71

Coinciding in the 1980s with the newfound panic over day care centers was

another legal and cultural trend: Suddenly adults were experiencing "recovered

memories" of childhood sexual abuse, often with satanic overtones. 72 In a

relatively short time, recovered memories of repressed sexual abuse in childhood

grew from "virtual nonexistence to epidemic frequency." 73 Scholars report an

"explosion of research and publishing" on the subject by activists between 1978

and 1981. 74 In 1980, the publication of Michelle Remembers, 75 a guide for

adults who suspected they had repressed memories of their own sexual abuse as

children, marked a major turning point in the "recovered-memory phenomenon." 76

A rash of lawsuits arose as those who had recovered memories sued their alleged

abusers - usually their parents.

[*225] And so began the "the memory wars," which pitted activists against

mainstream psychiatric professionals, many of whom insist that recovered

memories are in fact implanted in patients by their therapists. 77 Entering the

fray was a new syndrome, "multiple personality disorder," said to be caused by

childhood sexual abuse. 78 Ian Hacking compares the multiple personality

"movement," which has "thrived in a milieu of heightened consciousness about

child abuse," to a "parasite living upon a host." 79 Like everything surrounding

child sexual abuse, the diagnosis of multiple personality disorder has

engendered bitter disagreement among professionals, some of whom contend that

the disease is iatrogenic, created by a small band of therapists, aided by TV

talk shows and tabloid dramas. 80 It is the single most contested diagnosis in

psychiatry. 81 Although a majority of psychiatrists still believe there is

simply no such thing as multiple personality disorder, the rate of diagnosis of

the disease has increased exponentially since 1980. 82

The day care cases reached a groundswell in the mid-1980s, the recovered memory

lawsuits in the early 1990s. 83 Since that time, a backlash has struck; critics

have begun to claim that the theories and methods underlying these cases were

spurious. 84 Many experts reviewing the day care cases contend that police

investigators and prosecutors questioned the children in a manner that implanted

or suggested their accounts of abuse. 85 By 1992, in response to the rise of

charges and lawsuits based on recovered memories, some accused parents formed

the False Memory Syndrome Foundation, which attracted more than 6,000 families

in its first two years. 86 Yet, strangely, the backlash seems to continue the

discussion [*226] of child sexual abuse. 87 Now instead of movies of the week

about child abuse, we have movies of the week about people who were falsely

accused of committing child abuse. 88 The cultural obsession persists.

In the mid-1990s, a new menace riveted public attention: sexual predators. 89

States enacted so-called Megan's Laws, which require convicted sexual offenders

to register their presence with local authorities. 90 There was also an

increased public interest in retribution against child molesters, evidenced for

example, by rising calls to castrate pedophiles. 91 States have called for

longer confinements. Kansas's "Sexually Violent Predator Act," upheld by the

Supreme Court two years ago, provides for the indefinite civil commitment of

certain sex offenders. 92 The defendant in the Kansas case was convicted of

repeated child molestation.

[*227] The Internet has proved to be a particularly rich site for fear of

sexual predators (and of child pornographers, as I will describe below). Anxiety

over children's exposure to pedophiles was a major justification in Congress's

rush to pass the 1996 Communications Decency Act (CDA), 93 a measure that

quickly succumbed to a First Amendment challenge. 94 New anti-stalking measures

have arisen, targeting pedophiles who prey on children on the Internet. 95 The

Protection of Children From Sexual Predators Act of 1998 criminalizes the use of

interstate facilities to transmit information about a minor for criminal sexual

purposes. 96 The Child Online Protection Act (COPA) prohibits knowingly

distributing to minors "material that is harmful to minors." 97

Meanwhile lurid, anguished media reports about the peril to our children fuel

the crisis. As a media critic reported in 1997: "No other crime so preoccupies

the press." 98 Child sexual abuse has become the master narrative of our

culture. 99 It eclipses all other crimes; it is, we repeatedly hear, "worse than

murder." 100 We view it as a root cause. 101 It [*228] excuses its victims of

anything else; it "exculpates." 102 When someone is accused of a heinous crime,

he breaks down and confesses his sordid history of childhood sexual

victimization. And we respond, "Well, of course that explains it." 103

Child sexual victimization is the finale of countless movies, the climactic

revelation that explains everything. 104 A critic writes of popular women's

fiction: "The deep, dark secret that you have to plow through hundreds of pages

to discover is always - but always - what the blurb writers like to call

'society's last taboo'. So it's not much of a surprise anymore." 105 Question:

Why in The Prince of Tides are the brother and sister, so, well, crazy? (The

sister half-dead from a suicide attempt, the brother underachieving and ruined.)

Answer: They were molested as children. 106 The secret revealed, it dispels

mystery. We accept this notion even as some members of the psychiatric

establishment have come to doubt it - to suggest that the long-term effects of

childhood sexual abuse may have been exaggerated. 107

[*229] All of these incidents indicate a changed view of children: Children's

sexual vulnerability has become one of their most prominent characteristics.

Regardless of which "side" one takes as to the truth of statistics on child

sexual abuse, regardless of whether it is really a spreading plague or only an

outbreak of mass hysteria, it is certain that child sexual abuse is now a

subject of widespread controversy and social concern, a "cultural addiction."

108 We have come to scrutinize child sexuality with an intense fervor: In 1996,

a kindergarten student who kissed a girl in his class was suspended for sexual

harassment. 109

Cultural rhetoric insists, more than ever, on the innocence of children. We are

a far cry from the days in which Freud proclaimed that "cruelty" was a

"component of the sexual instinct" of children, 110 or when he portrayed infant

and childhood sexuality as manipulative, conniving and filled with murderous

rage toward the same-sex parent, or when psychoanalyst Melanie Klein revealed

her view of the child as a rageful sexually aggressive actor. 111 Psychoanalysis

replaced childhood innocence with a vision of childhood as a hotbed of forbidden

incestuous sexual strivings. Instead of accepting Freud's portrait of childhood

as a realm rampant with hostile sexual desire, we now strive to recover our

"pure" inner child. Freud's theory of childhood sexuality has been widely

accepted, 112 but it has always been hard to swallow. At first glance, it may

appear that the discovery of child sexual abuse as a social problem has returned

us to a pre-Freudian state where children are once again sexually pure and

blank. As I will describe below, this new vision of children may seem more

palatable, but it has come at a cost. 113

[*230]

B. The Discovery and Rise of Child Pornography

The distress surrounding child sexual abuse fostered the growth of new

subspecialties of concern and intervention: Sexual predators; day care abuses;

recovered memory; satanic ritual abuse; and multiple personality disorder all

arose, each with its own set of warring experts, advocates, and victims. 114

Yet, of the many fields in which the problem of child sexual abuse took root,

child pornography proved the most fertile.

In the first part of this section, I discuss awareness of child pornography as a

societal problem. Part two discusses the rise in prosecutions. Part three

reports statistics on the amount of child pornography and its waxing and waning

presence.

1. Public Awareness. - As with child sexual abuse more generally, initial

recognition of child pornography as a societal problem dates to the late 1970s.

Regardless of whether child pornography actually increased at this time, it is

clear, as the Attorney General's Commission reported, that it was in the "late

1970s, when awareness and concern about child pornography escalated

dramatically." 115 The year 1977 marked a turning point. In 1977, extensive

press coverage 116 claimed there had been an "emergence of a nationwide,

multimillion dollar child pornography market." 117 The media convergence

catalyzed state and federal legislative action. 118 That year thus marked the

initiation of federal and state laws against child pornography, including the

New York law that came before the Supreme Court five years later in Ferber. When

the Supreme Court transformed "child pornography" into a constitutional category

in 1982, concern for child sexual abuse had entered the First Amendment, just as

it had entered so many other realms of our society.

[*231]

2. Law Enforcement. - A rapidly growing complex of federal and state law

enforcement programs works to combat the crisis. 119 Perhaps the most prominent

of these is the FBI's undercover operation, code-named Innocent Images. 120

Other important agencies include the U.S. Customs Cybersmuggling Center, and the

International Child Pornography Investigation and Coordination Center, founded

in 1996. 121 In 1999, the FBI increased its number of online child pornography

task forces from one to ten. 122

Child pornography prosecutions have increased over the last decade. Since the

early 1990s, the Department of Justice has tripled the number of annual cases it

brings. 123 From 1998 to 1999 alone, the FBI's Innocent Images project doubled

its prosecutions. 124 The significance of this increase in prosecutions is

unclear: It may be that child pornography itself is on the rise. It is possible,

however, that the increased prosecutions indicate other factors, such as

increased enforcement, better detection, or expanding legal definitions of what

constitutes a crime. 125

3. Statistics. - Echoing the trend with child sexual abuse in general,

statistics on the prevalence of child pornography vary dramatically. At one

extreme, an author claimed that there was a vast, worldwide, commercial [*232]

five billion dollar child pornography industry 126 (a figure derided by the

FBI). 127 Others have estimated a more moderate yet still shocking figure: A one

billion dollar industry exists, exploiting about 1.5 million children. 128 At

the other extreme are those who insist that "commercial child pornography does

not exist in this country." 129 In their view, child pornography is a small

amateur practice; a "moral panic" has caused people to create statistics far out

of line with the scale of the problem. 130

Many reports suggest that there have been fluctuations in the existence of child

pornography since it was first "discovered" as a national problem in the late

1970s. Initial media reports on child pornography in 1977 were dire. A May, 1977

NBC broadcast estimated that "as many as 2 million American youngsters are

involved in the fast-growing, multimillion-dollar child pornography business."

131 The Chicago Tribune reported, also in May, 1977, that "child pornography has

become a nation-wide multi-million dollar racket that is luring thousands of

juveniles into lives of prostitution" and exploiting up to 100,000 children at

any time. 132

Although many sources suggest that child pornography was widely available in the

1970s, 133 by the 1980s, a number of accounts indicated that the commercial

child pornography industry had been all but eliminated [*233] in this country.

134 Even the Attorney General's Commission reported in 1986 that "there now

appears to be comparatively little domestic commercial production of child

pornography." 135 The lack of a domestic commercial industry was no cause for

complacency, however. On the contrary, a dangerous cottage industry was forming.

136 Furthermore, "there remained a significant foreign commercial industry" to

combat. 137 In any event, the public seemed to perceive that child pornography

was on the rise. 138 Activists warned that "child pornography distribution

rings" were "ever-widening." 139 Yet, some critics maintain that the vigilance

persisted without cause. One historian argues, for example, that "in reality,

child porn was never manufactured domestically on any large scale after the

1970s, and continuing arrests and seizures could be sustained only by steadily

expanding the definitions of what was illegal and by emphasizing the role of

pornography consumers rather than only the makers or distributors." 140

Although some claimed it was a waning problem, Congress found otherwise. In 1986

Congress found that "child exploitation has become a multi-million dollar

industry, infiltrated and operated by elements of organized crime, and by a

nationwide network of individuals openly advertising their desire to exploit

children." 141 A House Report from 1984 had estimated that "tens of thousands of

children under the age of 18 are believed to be filmed or photographed while

engaging in sexually explicit acts." 142

Even if child pornography was driven underground in the 1980s, many would insist

that the 1990s saw a "return of the repressed." 143 In [*234] 1995, Senator

Hatch warned that child pornography was a "plague upon our people." 144 The

media tell us that child pornography is now "soaring again" - primarily on the

Internet. 145 New technologies have changed the methods of distribution and

production. 146 Though new laws proliferate to combat the new technology (as

documented below), law enforcement officials still expect that child pornography

is "going to rapidly explode as a cottage industry." 147 Despite all our

efforts, we are now in the "golden age of child pornography." 148

II. The Law of Child Pornography

In this Part, I will describe the birth and growth of child pornography law. As

will be evident, the course of the law's evolution closely tracks the cultural

crisis charted in Part I. I do not present here an analysis of the legal

implications of these doctrinal developments, nor do I discuss their legitimacy

or wisdom. (I consider these questions in a separate article.) 149 Rather, I

tell the story of the historical development of the law in order to illustrate

its chronological correlation with the cultural story recounted above. I trace

two different themes in this history: the expansion of the rationale for banning

child pornography, and the widening definition of the term.

One peculiar aspect of child pornography law is that the doctrinal category has

evolved with the Supreme Court in a strangely passive pose: [*235] Rather than

attempting to define child pornography itself, the Court's cases have simply

upheld statutory definitions. This is in stark contrast to the law of obscenity,

for example, where the Court struggled to create the precise constitutional

definition of the category and thereby to set a clear boundary beyond which

states could not go. 150 Aside from declaring the requirement of a few standard

protective features (such as the requisite scienter, 151 or the need for a

statute to specifically define the prohibited material), 152 the Court's task in

child pornography law has been primarily to accept legislative enactments and

prosecutorial ambits, and then to justify them within the First Amendment. With

Congress and states pushing further and further for limits on child pornography,

this lack of a clear boundary - indeed the suggestion of some Justices that they

would entertain even broader definitions of child pornography than current ones

153 - has made the Court's work seem like an invitation to statutory expansion.

As legislatures expand the scope of child pornography law, as prosecutors rush

to vigorously enforce these laws to their limits, the response of the courts, to

much of this, has been acceptance. There is a sense of boundlessness in child

pornography law.

[*236]

A. Creation Of Child Pornography Law

Congress passed its first child pornography legislation, the Protection of

Children Against Sexual Exploitation Act, in 1978, just a year after the news

media discovered the crisis of child pornography. 154 The drafters of that Act

assumed that they were constrained by obscenity law standards in their approach

to the problem of child pornography. The Act, therefore, did not exceed the

bounds of existing obscenity standards as articulated by the Supreme Court in

Miller v. California. 155 It outlawed the use of children in the production of

obscene materials. It also enhanced the penalties for transmission or receipt of

obscene materials that contained depictions of children. 156 Congress, however,

rejected any measures that would have exceeded the scope of existing obscenity

laws. 157 The 1982 Ferber case removed that barrier.

In New York v. Ferber, 158 a unanimous Supreme Court (extremely rare in First

Amendment cases) created a previously unknown exception to the First Amendment,

proclaiming that "child pornography" was a new category of speech without

constitutional protection. 159 The Ferber Court encountered a novel First

Amendment problem: Whether non-obscene 160 sexual depictions of children -

speech not falling into any previously defined First Amendment exception - could

be constitutionally restricted. The Court's answer was yes.

[*237] In response to Ferber, Congress quickly passed legislation modeled on

the New York statute upheld in that case. The result was the Child Protection

Act of 1984. 161 The Act changed the meaning of "sexual conduct" to include

certain non-obscene pictures of children. The Act also raised the age of

"children" for purposes of the law from sixteen to eighteen, thereby vastly

extending the universe of "child pornography." 162 Convictions rose dramatically

under the revised law. Under the 1977 law only twenty-three defendants were

convicted during the seven years it was in effect (all of those violations were

for the distribution rather than the production of child pornography). 163 In

contrast, at least 214 defendants were convicted in the twenty-eight months

following the enactment of the 1984 law. 164

[*238]

B. Definition of "Child Pornography"

Since Ferber, federal courts, so disquieted 165 by the dangers of child sexual

abuse, have tolerated statutes that define child pornography in increasingly

broad and subjective terms. The law upheld in Ferber prohibited using a child in

a "sexual performance," meaning "any play, motion picture, photograph, or dance"

which included "sexual conduct." Sexual conduct was in turn defined to mean

"intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd

exhibition of the genitals." 166 The federal 1984 Child Protection Act adopted

most of this definition from Ferber but changed the word "lewd" to "lascivious."

167

It is this latter term, "lewd" or "lascivious exhibition of the genitals," that

launched the most problematic aspect of defining child pornography. Determining

whether a photo depicts a child engaged in intercourse or masturbation, for

example, would appear to be a relatively straightforward task. But what exactly

is "lascivious exhibition of the genitals"? [*239] How does it differ from an

"innocuous" 168 photograph of a naked child - a family photograph of a child

taking a bath, or an artistic masterpiece portraying a naked child model? It is

at this margin of child pornography law, where its prohibitions bump up against

"innocent" speech, that, ironically, the definition of child pornography has

grown.

Each subtle reiteration of the definition of "lascivious exhibition of the

genitals" since Ferber has expanded it. In the 1989 case of Massachusetts v.

Oakes, two members of the Court expressed approval of a law that would have

prohibited any depiction of child nudity, so long as the law drew certain

exemptions for a narrow range of proper "purposes." 169 In 1990 in Osborne v.

Ohio, the Court held constitutional a statute prohibiting child nudity if there

was a "graphic focus on the genitals," a term that had been previously unknown

in the Court's child pornography or obscenity cases. 170 The test seems to

invite prosecutions of pictures in which a child's genitals appear at the

center. Thus, a finding of graphic focus may depend on where a photographer aims

his camera, making a determination of constitutional protection depend on what

could be an accident of pictorial composition. 171

Lower courts have contributed to the expansion of the definition. In the 1994

case of United States v. Knox, the Third Circuit held that a depiction could

constitute a "lascivious exhibition of the genitals" even if a [*240] child is

wearing clothes. 172 The defendant, Knox, possessed videotapes that zoomed in on

the genital areas of clothed girls. The Third Circuit approved Knox's conviction

under federal law, deciding that the definition of "child pornography" did not

require child nudity. 173 The Circuit held its ground, even after the Supreme

Court remanded the case to the Circuit for reconsideration in light of a brief

by the Solicitor General of the United States in which he argued that the

Circuit had gone too far, and that the statute required at least

"discernibility" of the genitals if not outright nudity. 174 The Knox case

caused a "political firestorm"; it prompted front-page headlines, 175 a

resolution passed by Members of Congress condemning the Solicitor General's

interpretation, and the unusual step of the members of Congress filing a brief

in the case.

Meanwhile, other district and circuit courts have been busily amplifying the

meaning of "lascivious exhibition." Virtually all lower courts that have

addressed the issue have embraced the widely followed so-called "Dost" test,

originally developed by a California district court and affirmed in an opinion

by the Ninth Circuit. 176 The test identifies six factors that are relevant to

the determination of whether a picture constitutes a "lascivious exhibition"; it

includes such questions as "whether the visual depiction suggests sexual coyness

or a willingness to engage in sexual activity" and "whether the visual depiction

is intended or designed to elicit a sexual response in the viewer." 177

If we pushed the definition in the evolving case law to the extreme, it seems to

threaten all pictures of unclothed children, whether lewd or not, and even

pictures of clothed children, if they meet the hazy definition of "lascivious"

or "lewd." Thus, the capacious law has proved an excellent vehicle for

prosecutorial vigilance. Some of the recent cases suggest [*241] just how far

child pornography law has drifted. Most prominent have been prosecutions against

"mainstream" targets: In both Alabama and Tennessee, prosecutors, egged on by

anti-abortion activist and Operation Rescue leader Randall Terry, brought

obscenity and child pornography charges against Barnes & Noble for selling

photography books by artists Jock Sturges and David Hamilton. 178 (Sturges's

studio had been ransacked by an FBI raid in 1993, but a grand jury had refused

to indict him for child pornography violations.) 179 Oklahoma brought a child

pornography prosecution against a video store for renting the 1979 Academy

Award-winning film The Tin Drum based on a novel by G<um u>nter Grass. 180

Hollywood studios reportedly shunned the remake of the film Lolita based on

fears of criminal prosecution; despite the filmmakers' careful use of body

doubles for all controversial scenes, it took a year, as well as significant

cutting, to find a studio willing to release the film. 181 A sixty-five-year-old

New Jersey grandmother and respected photographer was arrested for taking nude

photographs of her two four to six-year-old granddaughters. 182 The incident is

the latest in a number of arrests where parents or family members face charges

for pictures that they claim were innocent family snapshots or artistic

endeavors. 183 Recently, an NPR reporter who says he was researching a

free-lance article on police tactics in pursuing child pornographers was himself

arrested for receiving child pornography. The defendant moved to dismiss,

raising a free speech claim, but the court rejected the motion. It held that

even "well-intended uses of" images of child pornography are unprotected. 184

[*242]

C. Rationale for Prohibiting Child Pornography

Although Ferber announced five reasons that supported the exclusion of child

pornography from constitutional protection, 185 the primary thrust of these

rationales was this: Child pornography must be prohibited because of the harm

done to children in its production. 186 The speech lacks First Amendment

protection because its creation requires a crime, the abuse of an actual child.

187

This notion that the production of child pornography requires an act of child

abuse is the key to the Court's jurisprudence. The rationale explains, for

example, the Court's dramatic departure from the strictures of obscenity law in

the child pornography cases: its refusal to make an exception for works of

"serious literary, artistic, political, or scientific value," 188 which is a

central concern in obscenity cases, or to consider [*243] works as a whole

rather than isolated passages. 189 If the point of the law is to protect

children from abuse in the production of pornography, the Court reasoned, it

seems irrelevant whether the resulting work has artistic value. 190

In Osborne v. Ohio, the Court extended the reach of child pornography law in its

decision to uphold the criminalization of mere possession as opposed to

distribution or production of child pornography. 191 Once again, the Court

relied on the unique rationale underlying child pornography law in justifying

both the decision and the rejection of a basic tenet of obscenity law: Privacy

rights protect the individual possessor of obscenity in his own home, even

though the material he possesses would be illegal to make or sell. 192 All of

these doctrinal turns in child pornography law were necessary according to the

Court because child pornography, unlike adult obscenity, springs from a grievous

harm. 193

Yet, two developments in child pornography law have departed from this essential

basis and have significantly extended the foundation upon which the law is

built. The first departure was made by the Court itself, the second by Congress.

In Osborne, the Court introduced an entirely new rationale for banning child

pornography: Pedophiles may use it to seduce new victims or to convince children

to submit to sexual violation. 194 [*244] Until Osborne, it was unheard of in

modern First Amendment law that speech could be banned because of the

possibility that someone might use it for nefarious purposes. 195

Congress also departed from the rationale of child pornography law when it

passed the Child Pornography Prevention Act of 1996. 196 The law responded to a

technological innovation, the development of virtual child pornography - wholly

computer-generated images. Although it is possible to view this innovation as a

means of circumventing the problem of child abuse that was previously required

for the production of child pornography, Congress chose another position. It

outlawed under the rubric of child pornography law materials that appear to be

(but are not) depictions of children engaged in sexual conduct. 197 According to

Congress, such child pornography, even though it is made without the use of real

children, must be prevented because it "inflames the desires of child molesters,

pedophiles, and child pornographers" 198 and "encourages a societal perception

of children as sexual objects." 199 We can debate whether that law is good

policy. What is certain, however, is that it is a total departure from the basis

of child pornography law - the abuse of children in the production of the

material - as the Supreme Court devised it. The law has so far withstood

constitutional challenge in the First Circuit and the Eleventh Circuit; in

December of 1999, the Ninth Circuit struck it down. 200

[*245]

III. Taboo, Transgression, And The Increased Sexual Allure Of Children

The arc of child pornography law closely tracks the cultural crisis mapped out

above: Since their "discovery" in the late 1970s, the problems of child sexual

abuse and child pornography have reached epidemic proportions. 201 Child

pornography law arose in the same time frame and grew apace. Its lifespan and

development correspond to the rise in awareness of child sexual abuse more

generally.

What are we to make of the correspondence between a spreading cultural crisis

and a growing legal structure? The conventional interpretation is obvious: Law

exists in a reactive mode; child pornography law has expanded because it has

responded to an expanding crisis.

In this Part, I cast aside this interpretation, not because it is wrong, but

because I think it is incomplete. Instead, I offer the first of two readings

that supplement the conventional account. Although I believe the first reading

offered here is legitimate, in the end, I find it only partially satisfactory. I

will explain why when I turn to my second reading in Part IV, which I believe is

a deeper, albeit more troubling, interpretation of the problem.

Inherent in all regulation, but particularly in regulation of sexual desire,

there is the possibility that legal taboos will invite their own violation. The

desire to transgress a prohibition, indeed the thrill of transgression for its

own sake, 202 is a familiar story. In fact, it is a foundational one. The most

basic myths of western culture tell of contravening prohibitions: Think of Adam

and Eve, or Prometheus, or Psyche.

Does this way in which interdiction can conjure desire play a role in the

puzzling relationship between an expanding law of child pornography on the one

hand and an escalating crisis of child sexual victimization on the other? Has

legal regulation of child pornography invited its own contravention, a rise in

sexualized depictions of children?

I do not argue that the desire to transgress is a ubiquitous problem conjured up

by all legal regulation. The dialectic between prohibition and transgression is

not universal. This is so in two important ways: First, even assuming that there

is a sector of people who desire to violate a prohibition simply because

activities are forbidden, we need not suppose that this sector represents more

than a minority of the general population. We can further assume that not all of

those who feel desire to transgress will in fact do so. Based on these

assumptions, therefore, it is possible to suppose that more people will be

driven to obey a prohibition than [*246] defy it. On this analysis,

prohibition would do more good than harm (in terms of achieving its stated

ends).

Second, this dynamic is not present in all realms. Rather, the sometimes

dialectical relationship between prohibition and desire plays itself out in

different ways in different domains. Its relative power varies according to the

situation. As I will explain below, it is especially relevant in sexuality. Its

significance is even more urgent in the context of our current crisis over child

sexual abuse.

I analyze these questions in three sections. First, I explore the contours of

the relationship between prohibition and violation. Second, I argue that the

nature of sexuality 203 renders this dialectic particularly forceful in the

context of sexual regulation, as opposed to regulation in general. Third, I

propose that the current climate surrounding child pornography law, described

above, has made it especially likely to encourage this perverse effect. In

short, there is something special about child pornography law.

A. The Dialectic Between Prohibition And Transgression

How can we best explain this paradox, which one critic called the "perverse

human tendency to transform prohibition into temptation?" 204 Some scholars have

argued that this dynamic arises from the nature of prohibition itself, its

peculiar dependence on its own violation. 205 As Foucault writes, "limit and

transgression depend on each other ... [A] limit could not exist if it were

absolutely uncrossable... ." 206

[*247] In fact, the existence of the legal limit seems to make its

transgression more alluring, implicating our "lust for the forbidden." 207

Foucault explains: "In ... our gestures and speech, transgression prescribes not

only the sole manner of discovering the sacred ... but also a way of recomposing

its empty form, its absence, through which it becomes all the more

scintillating." 208 Chaucer's Wife of Bath is more to the point. She said,

"Forbede us thing, and that desiren we." 209

But which comes first: desire or prohibition? To answer with certainty is

impossible, but Freud suggests the answer may be desire. Describing his inquiry

into tribal taboos, Freud writes: "Taboo is a very primitive prohibition imposed

from without (by an authority) and directed against the strongest desires of

man." 210 Of course, this makes sense: "Whatever is expressly forbidden must be

an object of desire." 211

Yet, some theorists have posited that prohibition produces desire. 212 At the

very least, Freud observes that prohibition could heighten a pre-existing

longing. 213 In fact, Freud is at times susceptible to an interpretation that

the order may be entirely reversed, that prohibition precedes desire and not

vice versa: Again, in Totem and Taboo, Freud remarked on the inherent capacity

of a taboo to arouse temptation. Freud's general approach to the personality

also suggests this structure; as one contemporary critic explains: In Freud,

"the super-ego is ... wrought from the sexualization of a prohibition and only

secondarily becomes the prohibition of sexuality." 214

[*248] Even though the question of which came first seems unanswerable, the

answer may be unimportant. Once in place, the two are locked in a dialectical

dance: Prohibitions escalate desire, desire calls for greater prohibitions, and

so on. 215 As Freud observed, "desire is mentally increased by frustration of

it." 216

In psychoanalytic theory, prohibition curiously preserves rather than

obliterates the desire it suppresses. 217 In fact, the pleasure of repeating and

observing a prohibition may come to replace the satisfaction of violating it:

The enforcement of the prohibition is an occasion for the reliving of the

prohibited desire, made all the more pleasurable because it is relived under the

veil of condemnation. 218 (Many have observed the salaciousness of the censor;

the leering, suggestive ebullience that can accompany a vigorous censorship

campaign.) In this way, prohibition and desire depend on one another. As Judith

Butler writes, "The prohibition does not seek the obliteration of prohibited

desire; on the contrary, prohibition pursues the reproduction of prohibited

desire and becomes itself intensified through the renunciations it effects... .

The prohibition not only sustains, but is sustained by, the desire that it

forces into renunciation." 219

This theory has unpleasant implications when considered in the context of our

cultural preoccupation with child molestation. It would suggest that the

heightened anxiety about child sexual abuse is closely related to repressed

pedophilic desire. Nancy Scheper-Hughes, a child welfare advocate and the chair

of the Department of Anthropology at Berkeley, has argued that "the national

obsession with child abuse and rescue" masks "the national collective

unconscious fear/wish that a 'child is being beaten' 'a girl is being

molested.'" 220

[*249]

B. Sex and Transgression

Sex thrives on transgression. Bataille writes that "the profound complicity of

law and the violation of law" defines eroticism. 221 The psychoanalysts

Laplanche and Pontalis insist that the "language of desire [is] necessarily

marked by prohibition." 222 Indeed, in sexuality, Freud observed that "some

obstacle is necessary to swell the tide of the libido to its height." 223 Freud

questioned why prohibition increases desire in the realm of the erotic, but not

in all other realms. For example, he compares desire for wine to desire for sex:

One thinks, for instance, of the relation of the wine-drinker to wine. Is it not

a fact that wine always affords the drinker the same toxic satisfaction - one

that in poetry has so often been likened to the erotic and that science as well

may regard as comparable?... Do we ever find a drinker impelled to go to another

country where ... alcohol is prohibited, in order to stimulate his dwindling

pleasure in it by these obstacles? Nothing of the sort... . Why is the relation

of the lover to his sexual object so very different? 224

How does Freud answer this question? The appeal of the taboo holds special force

in sex according to Freud because our sexuality is founded in taboo - the

frustrated incestuous desire that children feel for their parents. 225 Sexual

prohibitions exert a special hold on us because they allow us unconsciously to

revisit our forbidden oedipal longings. To exploit its pleasures to the fullest,

we need to experience sexuality as forbidden.

It may be that prohibition is so stimulating and so suggestive of eroticism that

its very presence can alchemically transform the mundane into the sexy. For

example, the Wall Street Journal reports that in the last few [*250] years, as

"cigarette smoking was pushed to the extremes of acceptable behavior" a new

fetish sprang to life for so-called "smoxploitation" films, 226 movies marketed

for their erotic appeal, yet featuring "fully clothed, attractive women who do

nothing but smoke." 227 This story suggests that prohibition not only

intensifies the allure of certain sexual scenarios, but can conjure up sex out

of whole cloth.

According to psychoanalytic theory, the structure of sexuality makes it

inevitable that regulations of sex will be inherently (albeit only partially)

counterproductive. The Freudian insight gives force to an argument made by

Catharine MacKinnon against obscenity law. To MacKinnon, the social condemnation

surrounding obscenity may be part of its allure:

It seems essential to the kick of pornography that it be to some degree against

the rules ... . Thus obscenity law, like the law of rape, preserves the value

of, without restricting the ability to get, that which it purports to both

devalue and to prohibit. Obscenity law helps keep pornography sexy by putting

state power - force, hierarchy - behind its purported prohibition on what men

can have sexual access to. 228

Furthermore, for MacKinnon, the cyclical relationship of obscenity and sexual

desire means that pornography will keep pushing back the boundary of what is

acceptable. She writes, "the frontier of the taboo keeps vanishing as one

crosses it... . More and more violence has become necessary to keep the

progressively desensitized consumer aroused to the illusion that sex is (and he

is) daring and dangerous." 229 (Of course, MacKinnon does not explain adequately

how her own regulation of pornography will escape this trap.)

C. Child Pornography Law and Mainstream Pedophilia

If prohibition produces or escalates desire in the realm of sexuality generally,

is there anything about child pornography law that would make it particularly

vulnerable to this perverse dynamic? Sociological literature suggests the answer

is yes: The social climate of anguish over child sexual abuse, and the expanding

laws of child pornography that [*251] express and reflect this anguish, have

made children all the more sexually alluring.

The classic sociological work on the nature of taboo and transgression is Kai T.

Erikson's Wayward Puritans: A Study in the Sociology of Deviance. 230 Erikson

writes that "deviant behavior [seems] to appear in a community at exactly those

points where it is most feared." 231 Explaining the paradox by which "many of

the institutions designed to discourage deviant behavior operate in such a way

as to perpetuate it," 232 he writes:

Any community which feels jeopardized by a particular form of behavior will

impose more severe sanctions against it and devote more time and energy to the

task of rooting it out. At the same time, however, the very fact that a group

expresses its concern about a given set of values often seems to draw a deviant

response from certain of its members. There are people in any society who appear

to "choose" a deviant style exactly because it offends an important value of the

group... . 233

Erikson's theory indicates that the heated anxiety we have exhibited about child

pornography makes it more inviting to criminal violation. As he explains,

deviant behavior manifests itself in perfect symmetry to social fears, lending a

"self-fulfilling prophetic" quality to the community's apprehensions. 234 An

early history of Puritan culture explained the self-generative quality of fear:

"Their troublers came precisely in the form and shape in which they apprehended

them." 235

Reconsider in this context the scandal over the Calvin Klein "kiddie porn"

advertising campaign of August 1995. Prior to the release of the campaign,

public concern over children's sexual vulnerability had [*252] reached a

frenetic pitch: Knox v. United States had been decided the previous year.

Senator Orrin Hatch had just introduced the legislation that was to become the

Child Pornography Prevention Act of 1996. 236 Congress had just passed the

Communications Decency Act - since declared unconstitutional - aimed to protect

children from the dangerous sex available on the Internet. In July 1995, Time

magazine featured a frightening and much criticized cover story detailing the

sexual threat to America's children posed by new technology. 237 (Commentators

assailed the magazine for giving in to cultural hysteria; Time printed a

retraction the following week.) Also in July 1995, the FBI made news when it

began investigating a ring of child pornographers on America Online. 238 At the

very height of this panic, in August 1995, Calvin's Klein's new multimillion

dollar "kiddie porn" jeans campaign emerged on buses and TV ads.

The campaign looked like fetish photographs of a pedophile. In one image, a

pubescent girl spreads her legs to reveal white cotton panties under her short

skirt. In the TV ads, the teenagers seem to be tricked into auditioning for a

part in a pornographic movie. 239 A critic called it "the most profoundly

disturbing campaign in TV history." 240

Klein withdrew the ad campaign amid public outcry, an unfulfilled threat of

prosecution for child pornography, 241 and general media [*253] frenzy. It was

a staggering success. The campaign dramatically increased sales of Calvin Klein

jeans. 242 The cancelled ads became hip collectors' items. Amidst all the

government and media focus on child pornography, it seems as if such an ad

campaign were predestined; it searched out and violated the hottest taboo. After

all, jeans sell the image of the sexual outlaw. Like a cool teenager, Calvin

Klein sold the swagger of saying nothing scared him, certainly not the sexual

threat that preoccupied policymakers. He defied authority and gained instant

credibility with rebellious kids. 243

How did this come to be? How did a "kiddie porn" advertising campaign - so

extreme that it sparked an FBI investigation, and so mass-market that it

appeared on the sides of buses - arise in an era of increased regulation of

child pornography? Strange as it may seem, the Calvin kiddie pornography

campaign exemplifies a recent pattern. A cultural critic writes of the

"ubiquitous eroticization of little girls in the popular media and the just as

ubiquitous ignorance and denial of this phenomenon." 244 For example, fashion

celebrates the "waif look" to the point where even a mainstream magazine like

Vogue was accused in the popular press of peddling kiddie porn. Pop star

sensation Britney Spears rose to fame by dressing up as a naughty schoolgirl and

dancing provocatively in her uniform. 245 The Village Voice describes the

increasing demand for models who look like little girls: The modern ideal has

"the face of a child, while her engorged red lips suggest readiness for

penetration. Her boyish body heightens the illusion of the fuckable child." 246

Not only fashion, but even network news uses sexy children. Three years after

the death of six-year-old JonBenet Ramsey, her preternaturally sexual figure

still minces eternally on prime time television in full makeup and a revealing

outfit. Decrying the seemingly endless - not to mention needless - footage that

aired "every, every night" for months after the murder, CBS news anchor [*254]

Dan Rather condemned the TV industry for repeatedly airing pictures that "border

on kiddie porn." 247

The child as sexual subject has emerged as a major force in artistic culture.

248 Best-selling, high-art photographer Sally Mann takes erotic nudes of her

prepubescent children. A recent photograph of Mann's daughter entitled "Venus

After School" pictured the naked child languorously spread on a divan in the

precise position of Manet's famous portrait of a prostitute. 249 One of the most

disturbing and well-known art photographers, Larry Clark, who documents the

lives of drug addicted and violent teenagers, takes photographs which, one could

argue, easily meet the definition of child pornography. 250 For example, the

title of the close-up photograph "Prostitute Gives Teenager His First Blow Job"

speaks for itself. Ironically, at the same time Sally Mann and Larry Clark are

so vulnerable to censorship, 251 it is essential to note their commercial and

critical success. Mann's shows sell out. Larry Clark has been embraced by the

film industry. 252 Mann's and Clark's renown, coupled with their legal

vulnerability, suggests the complex relationship between legal prohibition and

artistic popularity.

The highly eroticized use of children in fashion, television, and advertising is

now the "soft porn" of child pornography. 253 As the crisis over child

pornography mounts and the legal proscriptions multiply, the sexual allure of

children does too. A cultural scholar reports that "there [now] circulates more

disguised kiddie porn than at any other period in history ... . The late

twentieth century has seen children emerge as the principal incitements to

desire ... ." 254 As rhetoric rises about the threat of sexual abuse, as we

insist more than ever on the natural innocence of children, as we expand the

definition of what constitutes child sexual conduct, the seductive child beckons

to us in advertising, fashion, pop culture, and art. In fact, some scholars

argue that modern society is perverse and pedophiliac, that pedophilia has

become "such an everyday [*255] part of our lives that we hardly notice it."

255 Some feminists have gone so far as to argue that given our culture, we

should no longer label the person who sexually abuses children as a pervert;

rather such a person is behaving according to "normal" masculine sexual culture.

256

In this sense, child pornography law seems like a partial failure. Perhaps the

law has been successful in reducing the circulation of hard core child

pornography, although given the difficulty of measuring the existence of child

pornography and the claims that it is a rising tide, the law may have failed

even at that. 257 Yet, even if we assumed that child pornography law has

succeeded at this task, it seems that its target has mutated and gone

mainstream. Whatever the law's success in stamping out the "low-profile,

clandestine industry" of kiddie porn, child pornography law has presided over a

period in which the sexualized marketing of children has stepped into the light

of day. 258 Given what we know of desire, sexuality, and deviance, the law may

have unintentionally fueled this trend.

IV. Child Pornography Law and the Proliferation of the Sexual Child

All seems infected that th' infected spy,

As all looks yellow to the jaundiced eye.

- Alexander Pope, An Essay on Criticism (1709) 259

In this Part, I show that the story I told above of taboo and transgression is

incomplete, and, in a sense, na<um i>ve. That is so because the story still

depends on a conception of law as a pure realm, separate from culture but caught

in a dialectic with it. Here I deconstruct 260 that false binary. Although I

think there is a dialectical relationship, it is only one aspect of a more

complex alliance.

Call the theory I present here the disease model of child pornography law. Like

everything else, law has been infected by the sexualization of children; it is

symptomatic of the illness it fights. And once infected, the doctor spreads the

disease to his other patients. In this view, law does not merely invite its own

transgression; it reenacts and disseminates the very cultural problem it

attacks. The drama described above of taboo and transgression is still a means

of cross-contamination between doctor and [*256] patient. The argument is

still valid. But it is just one type of case, off to the side, in an enormous

sick ward.

The two different theories work in synergy. For the sake of clarity, however, I

want to stress their differences. Whereas previously I focused on the way in

which child pornography law might increase sexual desire for children, in this

Part I do not focus on desire. Rather, I argue that child pornography law

socially constructs the child as sexual. One result of this construction may be

that more people feel sexual desire for children. But that is not the only

possible result. Others may feel increased horror or repulsion. Others may be

driven to activism. In any event, child pornography law has deepened the link

between children and sex. The reaction to their union will vary with each

observer.

The argument in this Part has two sections. In the first section, I argue that

child pornography law requires us to scrutinize pictures of children - and

ultimately children themselves - as pedophiles do. In the second section, I

begin by arguing that the law presents a problem of "resignification": It strips

the sexualized child out of child pornography, inserts him into a new context,

and inadvertently reifies what it attacks. I then turn to a Foucauldian

structure in which to rethink child pornography law.

A. Surveillance and the Pedophilic Gaze

Child pornography law has changed the way we look at children. I mean this

literally. The law requires us to study pictures of children to uncover their

potential sexual meanings, and in doing so, it explicitly exhorts us to take on

the perspective of the pedophile. 261 As Congress stated, one danger of child

pornography is that it "encourages a societal perception of children as sexual

objects." 262 But child pornography law unwittingly encourages the same

perception. It, too, sexualizes children, and thereby promotes one of the very

dangers it purports to solve. 263 I begin with a cultural example that

illustrates the changed way we look at children and then turn to case law to

explain it.

In February of 1999, Calvin Klein launched an advertising campaign introducing

his first line of children's underwear. Unlike the controversial campaign of

1995 discussed above, this advertised underwear for toddlers, not for teens. The

centerpiece of the campaign was a black-and-white photograph of two boys - about

age 4 or 5 - jumping on a sofa in their underwear. The company said the ad

showed "children, smiling, laughing and just being themselves." 264 Klein

unveiled the new ad in a [*257] huge billboard in Times Square. He also ran

full-page ads in the New York Times Magazine and other newspapers.

The reaction was swift and furious: Critics saw the ads as "child pornography."

The accusations were the front-page story the next day in newspapers and

tabloids. The New York Post's story called the pictures "provocative ads,

featuring semi-nude kids." 265 Boycotts were threatened. Talk show host Rosie

O'Donnell vowed on national TV never again to buy underwear by Calvin Klein. 266

Klein had the billboard removed a day after it was unveiled and never ran the

ads again. 267 (It was too late to remove them from some newspapers, where they

appeared once.) 268

How did this happen? Why did so many people come to see child pornography in

this picture of children "smiling, laughing and just being themselves"? Even

Klein's critics acknowledged: "You can envision this photograph taken by

accident - an innocent photo taken by a mom." A curator at the International

Center for Photography described the picture as a "very ordinary image." 269 It

was similar to a family snapshot but with "a sense of nostalgia and classicism."

270 What made this "ordinary image" become "provocative" 271 and "pornographic"?

The same critic who recognized that a "mom" could have taken the photo by

accident pointed to the following evidence to show that this picture was not an

accident at all, that it was child pornography: "If the outline of the little

boys' genitals can be seen in a photograph taken by a professional photographer,

that's not an accident," he said. 272

After I read this criticism, I went back and looked at the picture in the New

York Times Magazine. One of the little boy's underpants seem baggy as he jumps

in midair. Is that an outline of his genitals I wondered? It was then, as I

scrutinized the picture of the five-year-old's underwear, that I realized I was

participating in a new order, a world created and compelled by child

pornography.

I do not believe that thirty years ago people would have seen the photograph the

way we do now. Our vision has changed. 273 I think that [*258] child

pornography law is part of the reason we have come to think about the picture

this way, searching for signs of sex in a "very ordinary image" of children.

It is essential to the definition of child pornography for us to understand that

pedophiles see differently. Once we understand this, however, we have to take

another step: We must look at pictures as a pedophile would. Consider the

argument made to the Supreme Court in Knox by amici:

Because lasciviousness should be examined in the context of pedophilic voyeurs,

this Court should view visual images of young girls in playgrounds, schools, and

swimming pools as would a pedophile. Pedophiles associate these settings with

children, whom to pedophiles, are highly eroticized sexual objects. It therefore

follows as a matter of course that viewing videocassettes of the genitalia of

young girls in these settings permits the pedophile to fantasize about sexual

encounters with them. 274

This argument exhorts the Court to see children as "highly sexualized objects."

The Third Circuit seems to have accepted this argument when the case was

remanded to it from the Supreme Court. In examining the videotapes of clothed

girls, the court found significant that "nearly all of these scenes were shot in

an outdoor playground or park setting where children are normally found." 275

This aspect of the videotapes - that they were filmed in a setting where

"children are normally found" - became one of the details that the court

specifically, though not exclusively, relied on in concluding that the material

in question was child pornography that "would appeal to the lascivious interest

of an audience of pedophiles." 276 According to this logic, a place "where

children are normally found" is now suspiciously erotic. If the picture

"permitsthe pedophile to fantasize," 277 then it requires us to do so too.

[*259] Why did the law develop like this? The problem for legal regulation is

that pedophiles 278 often find stimulation from the very same pictures that

non-pedophiles consider innocuous, that we 279 extol and value: consider the

pedophilic magazine Paidika, a self-described online "Journal of Paedophilia."

280 Its website depicts not grotesque sex acts with children, but pictures of

kids that I could only call "cute." Paidika also provides links for the

interested pedophile to Vogue Bambini, an Italian fashion magazine for

children's clothes. Paidika features on its website a recent Vogue cover,

depicting the child star Macauley Culkin and a blonde girl. The children,

wearing heavy winter coats and hats, smile angelically at the camera.

In fact, certain pedophiles may prefer "innocent" pictures. 281 According to

some theorists, the stimulation of a picture may be inversely proportional

[*260] to its overtly sexualized nature: It may be the very innocence - the

sexual naivete - of the child subject that is sexually stimulating. 282 Thus,

the peculiar nature of pedophilic desire itself may make the governance of child

pornography an impossible task. One writer reports that members of the North

American Man Boy Love Association (NAMBLA - an organization for pedophiles, many

of whom are in prison) find erotic stimulation by watching children on network

television, the Disney channel, and mainstream films. As the writer puts it: "I

had found NAMBLA's 'porn' and it was Hollywood." 283

With this in mind, it becomes easier to understand why the territory of "lewd

exhibition of the genitals" has proved fertile ground for legislative action and

judicial approval. Take the facts of United States v. Knox, 284 the

controversial Third Circuit decision discussed above. According to the facts,

here was a pedophile whose apparently preferred form of child pornography

existed on this very margin: Although the court found that the material was

bought by Knox for sexual stimulation, the videotapes seized from the defendant

did not portray explicit sexual acts such as intercourse. Indeed, they did not

even depict nudity; rather, they contained "vignettes of teenage and preteen

females" engaging in baton twirling and gymnastics routines and sometimes

"striking provocative poses for the camera." 285 The girls, aged eleven to

seventeen were all wearing "bikini bathing suits, leotards, underwear, or other

abbreviated attire." 286

By criminalizing this type of material, it becomes harder and harder to draft a

definition of prohibited speech that evades overbreadth. 287 How do we at once

prohibit the material at issue in Knox and yet avoid sending a parent to jail

for taking a picture of her eleven-year-old daughter wearing a bikini on the

beach? Or, for that matter, how do we distinguish between the material Knox

possessed and protect mainstream fashion magazines and advertisements, often

featuring fifteen or sixteen-year-old-models "striking provocative poses" and

wearing "abbreviated attire" - sometimes even nude?

In 1986 the Attorney General's Commission noted these problems in a footnote to

its report:

There is also evidence that commercially produced pictures of children in erotic

settings, or in non-erotic settings that are perceived [*261] by some adults

as erotic, are collected and used by pedophiles... . For example, advertisements

for underwear might be used for vastly different purposes than those intended by

the photographer or publisher. 288

Yet, the Attorney General's Report also indicated that although it was

"important to identify" this kind of material, "there is little that can be done

about" it. 289 Legislatures and prosecutors did not agree. The push to

criminalize this sector of "child pornography" was already underway. Thus, the

law presses inexorably in the direction of prohibiting more and more speech that

is susceptible of at least two different interpretations.

As a result of this pressure, the pedophilic gaze has become central, not

peripheral, to child pornography law. It is relevant in the law's premise as

well as in its application. First, the obligation to see the world from the eyes

of a pedophile arises from the basic assumption in the definition of child

pornography described above. Once we accept that prohibited depictions of

"sexual conduct" by children can include not only explicit sex acts, but also

the more subjective notion of "lascivious exhibitions," this process begins. The

law presumes that pictures harbor secrets, that judicial tests must guide us in

our seeing, and that we need factors and guidelines to see the "truth" of a

picture. As a court explained, child pornography law rests on the notion that a

photograph contains "subtleties which the jury must study." 290 That even a

clothed child can be engaging in lascivious exhibition of his genitals only

makes the process more urgent and more difficult. Once the law acknowledges that

pedophiles like many pictures of children, and that clothed children can be sexy

children, then we have to redouble our efforts and to doubt our standard ways of

seeing.

Second, the mechanisms of applying the law usher us step by step into a

pedophilic world. As discussed in Part II, the leading case on the meaning of

"lascivious exhibition" is United States v. Dost, a California district court

case that announced a six-part test for analyzing pictures. 291 [*262] The

test was affirmed in a Ninth Circuit decision. The so-called "Dost test"

identifies six factors relevant to the determination of whether a picture

constitutes a "lascivious exhibition":

1) whether the focal point of the visual depiction is on the child's genitalia

or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in

a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate

attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to

engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual

response in the viewer. 292

The application of the test requires an inquiry into the intended effect of the

material on an audience of pedophiles. 293 The sixth and most important Dost

factor asks if the picture is "designed to elicit a sexual response in the

viewer," 294 which targets not just any viewer, but a pedophile viewer. 295 As

the Ninth Circuit explained, "lasciviousness is [*263] not a characteristic of

the child photographed but of the exhibition which the photographer sets up for

an audience that consists of himself or like-minded pedophiles." 296 The court

also suggested that the inquiry should include whether the photographer "arrayed

[the image] to suit his peculiar lust." 297 To answer this question obligates us

to get inside the head of the pedophile and to see the world from his eyes. 298

But it is not only this factor of the Dost test that requires us to take on the

perspective of the pedophile. The application of each Dost factor demands a

heightened awareness of the erotic appeal of children. We must search out

whether the child's genitals are the focal point of the picture, whether the

pubic area is prominent, if the child is in a setting normally associated with

sex, if the child conveys an erotic acquiescence in his gaze, or if there is

some suggestion of his "coyness or willingness to engage [*264] in sexual

activity." 299 If a videotape depicts a clothed child dancing, we must look

closer: Is the child innocently dancing or is she engaging in "gyrations ...

indicative of adult sexual relations?" 300

Consider, for example, the scrutiny necessary to determine whether a picture

suggests "sexual coyness or a willingness to engage in sexual activity." In the

Dost case, the court describes a photograph of a ten-year-old girl sitting naked

on the beach:

Her pelvic area appears to be slightly raised or hyperextended, and her legs are

spread apart. Her right leg is fully extended at a slight outward angle. Her

left leg is bent at the knee and extended almost perpendicularly away from the

body. Her pubic area is completely exposed, not obscured by any shadow or body

part. 301

The court then analyzes whether such a photograph is lascivious - in particular

whether the girl expresses a sexual "willingness." The court concludes that the

girl does seem sexually inviting. Why? Although "nothing else" about the child's

attitude conveys this, the court nonetheless concludes that the girl's "open

legs do imply such a willingness [to engage in sexual activity]." 302

What does it do to children to protect them by looking at them as a pedophile

would, to linger over depictions of their genitals? And what does it do to us as

adults to ask these questions when we look at pictures of children? As we expand

our gaze and bend it to the will of child pornography law, we transform the

world into a pornographic place. Our vision changes the object that we see. 303

Child pornography law constitutes children as a category that is inextricable

from sex. The process by which we root out child pornography is part of the

reason that we can never fully eliminate it; the circularity of the solution

exacerbates the circularity of the problem. Child pornography law has a

self-generating quality. As everything becomes child pornography in the eyes of

the law - clothed children, coy children, children in settings where children

are found - perhaps everything really does become pornographic.

Congress passed the 1996 Child Pornography Prevention Act in part because it

feared that child pornography was changing our view of children. Congress found:

The sexualization and eroticization of minors through any form of child

pornographic images has a deleterious effect on all children [*265] by

encouraging a societal perception of children as sexual objects... 304

Although I contest the constitutionality of banning speech based on this

finding, 305 the fundamental insight of Congress was fair: Child pornography

changes the way we perceive children. What Congress failed to see is that child

pornography law itself has also done that. Even more directly than child

pornography, child pornography law explicitly requires us to take on a

"perception of children as sexual objects," to see, for a moment, as a pedophile

does. I return to these questions at the end of the next section of this

Article. 306

B. Producing the Sexual Child

Now I want to make a more radical argument: The gaze that child pornography law

constructs is just part of a larger process by which law spreads the

sexualization of children. The expansion of child pornography law has opened up

a whole arena for the elaborate discussion of children as sexual creatures.

Quite simply: Even when a child is pictured as a sexual victim rather than a

sexual siren, the child is still pictured as sexual. Child pornography law

becomes a vast realm of discourse in which the image of the child as sexual is

not only preserved but multiplied.

1. Resignification. - This stems, in part, from a basic paradox in censorship:

In order to prohibit speech, you must describe it. Child pornography

jurisprudence has thus been largely concerned with articulating the limits of

the definition of child pornography, beyond which the government may not reach.

To do so has required careful analyses of what child pornography is. Cases

direct courts and juries to engage in intricate analyses of the "sexual coyness"

of children, of their potential to arouse: [*266] Is that girl on the beach

giving a come-hither look to the camera? 307 We have labored legal opinions

pondering the "turgidity" of a boy's genitals 308 and the meaning of "pubic

area." 309

This aspect of child pornography law implicates a larger problem inherent in

language. As Judith Butler tells us, "Language that is compelled to repeat what

it seeks to constrain invariably reproduces and restages the very speech that it

seeks to shut down." 310 The extensive efforts to regulate child pornography

keep the story of children's sexuality constantly before us.

Child pornography law has thus become a major venue for the spectacle of child

sexuality. I believe its proliferation has transformed the way we think of

children. The growth of child pornography law is comparable in effect to

Foucault's view of the power of eighteenth century sex manuals that warned

parents of the dangers of childhood masturbation. 311 As Foucault writes,

One might argue that the purpose of these discourses was precisely to prevent

children from having a sexuality. But their effect was to din it into parents'

heads that their children's sex constituted a fundamental problem ... This had

the consequence of sexually exciting the bodies of children while at the same

time fixing the parental gaze and vigilance on the peril of infantile sexuality.

312

One does not need to be a fancy French theorist to recognize the way in which

the repetition of a problem in language may reify the problem [*267]

described. A fear of this very danger was a prominent concern in old fashioned,

run-of-the-mill obscenity cases. In his cultural history of sexual morality

cases in the 1920s and 1930s in New York, Bill Nelson describes several cases in

which judges invoked their reticence to describe sexual matters. 313 Not only

was such description considered indecorous and unseemly, 314 the fear was that

the description would itself spread the vice. The material at issue within a

judicial opinion became like an infectious agent that had to be quarantined in

the closed chambers of judges; only they had the preternatural strength to

withstand it. For example, in a prosecution by the New York Society for the

Suppression of Vice to ban a book, a dissenting judge conjured up the notion of

contagion when he remarked that it was dangerous to "spread upon our pages all

the indecent and lascivious parts" of the very book the Society was attempting

to suppress. 315

Although the concerns may seem quaint, they nonetheless recognize an intrinsic

problem in censorship law: Language can perpetuate the thing it seeks to undo.

Thus, child pornography law poses another variation on the general problem of

"resignification." 316 Because speech can give rise to multiple and

contradictory readings, any kind of speech that describes what it opposes risks

participating in the very problem it attacks.

One harm of child pornography is that it pictures children as sexual. But so

does child pornography law; it is itself a sphere in which that representation

continues and multiplies, albeit in a different fashion and with diametrically

opposed purposes. Even well-intentioned speech, in describing what it objects

to, may conjure up and reinforce its target. 317 No matter how well-meaning our

goals in fashioning child pornography law, we have still created a space for the

perpetual discussion of children [*268] and sex, where children and sex are

bound together and where sex extends its grip on children. 318

2. Discourse and Foucault. - In the History of Sexuality, Vol. 1, Foucault makes

an arresting claim: Rather than viewing our present era of sexuality as one in

which we have been liberated from a Victorian repression, he argues instead that

the tools we think have liberated us - Freudian psychoanalysis, scientific

knowledge, a society in which we talk endlessly about sex and probe its depths -

have in fact enslaved us further into a deeper and more insidious repression.

319 Foucault envisions a world that is topsy-turvy. Power, as he views it,

resides not in the hands of the police or of a few government institutions;

rather it is diffuse and pervasive, an immanent "bio-power" exercised on all by

all. 320 Power works only marginally through repression and prohibition; it

exerts itself most strongly through tools of apparent liberation. 321 The

analysis that I have just presented would seem to give force to Foucault's

theory. 322

[*269] Foucault argues that one way power spreads its grasp is through an

"incitement to discourse." 323 The history of sexuality for the last three

centuries is not a story of Victorian descent into censorship and then

twentieth-century liberation from prudery. Instead, Foucault writes, "What we

now perceive as the chronicle of a censorship and the difficult struggle to

remove it will be seen rather as the centuries-long rise of a complex deployment

for compelling sex to speak, for fastening our attention and concern upon sex."

324 There has been a "discursive explosion" 325 around sex, a proliferation of

discourses, as sex has been taken up and turned into a specialized area of

scientific, religious, and sociological knowledge. 326

This "transforming of sex into discourse" 327 served an insidious purpose.

First, it opened up channels for disciplinary power: The more we discuss sex,

the more we develop norms and then scrutinize our deviations from the norm. 328

But more importantly for our purposes, the transformation of sex into discourse

changed the "nature" of sex. Foucault writes, "This is the essential thing: that

Western man has been drawn for three centuries to the task of telling everything

concerning his sex ... and that this carefully analytical discourse was meant to

yield multiple effects of displacement, intensification, reorientation and

modification of desire itself." 329 In this way, sexuality became not only the

target of the discourses that surrounded it; it also became their product. By

suggesting that discourses about sexuality therefore modified the "nature" of

sex, that discourse not only represents but actually forms the object of its

inquiries, Foucault presents a radical notion of the power of representation.

330 Discussion changes, indeed produces, the thing discussed. 331

Foucault does not deny that censorship exists. Yet, any emphasis on it is a

ruse. Censorship is only "part of the strategies that underlie and [*270]

permeate discourses." 332 He writes, "All these negative elements - defenses,

censorships, denials - ... are doubtless only component parts that have a local

and tactical role to play in a transformation into discourse, a technology of

power, and a will to knowledge ..." 333 Censorship is just a way of shifting the

vocabulary. Thus, restrictions on the way people could speak about sex are "only

the counterpart of other discourses, and perhaps the condition necessary in

order for them to function." 334 Talking about censorship becomes another way of

talking about what is censored. For Foucault, the "very terms by which sexuality

is said to be negated become, inadvertently but inexorably, the site and

instrument of a new sexualization." 335

This reinforces my earlier assertion: that child pornography law has shaped the

category of children. 336 Discussing Foucault, Charles Taylor writes that

discourse "brings about a new kind of subject and new kinds of desire and

behavior" that belong to him. 337 Along with all the other discourses

surrounding child sexual abuse, child pornography law has come to determine who

children are. It constitutes them as a category that is "simultaneously sexual

and not sexual, as innocent and as provocative." 338 As the law seeks to

liberate children from sexual oppression, it also reinscribes children as

sexually violable. 339 And this new understanding of children opens the way for

what Foucault describes as further technologies of disciplinary power, for

"surveillance" and "normalization." 340

[*271] The legal reader is likely to resist these arguments. How can talking

about a problem make it worse? The very idea runs contrary to two deeply held

assumptions: that law is a solution to social problems and that the more speech

about a problem the better.

This is perhaps one of the most radical aspects of The History of Sexuality for

lawyers, and particularly for First Amendment lawyers: its implications for the

idea of free speech. 341 Whereas Foucault argues that talking about a problem

often produces it, lawyers and free speech lawyers assume the opposite: that

talking about a problem is a means to resolve it. 342 This view of talk is

implicit in the assumption that law is a tool to solve societal problems. Of

course, we view law - which exists in language - as an instrument for solving

society's ills.

Beyond this view of law in general, the liberal free speech tradition in

particular is premised on the view that more speech is better than less. 343 As

Justice Brandeis taught us in his famous defense of speech as a tool for social

reform: "Publicity is justly commended as a remedy for social and industrial

diseases. Sunlight is said to be the best of disinfectants; electric light the

most efficient policeman." 344

[*272] When it comes to the crises of child abuse and child pornography, we

repeatedly hear that we need to break the silence, to speak at last of these

"unspeakable" crimes. 345 Child pornography law is a tool of liberation for

victims. It gives them voice and it wards off future crimes against children by

spreading word of the prohibition. Child pornography law has enlarged public

discourse about this "unspeakable" crime; in fact, it has become part of the

greater cacophony of talk about it. But what if we imagine that speaking about a

problem was not a pure act, that speaking about a problem could compound it?

We think of child pornography law as prohibiting speech. And it does - it has

criminalized sexual pictures of children. Yet, as I have documented above, it

has also produced new ways of speaking: legal opinions with their meditations on

the meaning of "lasciviousness" and pubic areas, congressional debates and

legislation, law enforcement manuals, jury deliberations, child abuse experts,

and newspaper reports. 346 As Foucault writes of censorship more broadly, "Not

any less was said ... on the contrary. But things were said in a different way;

it was different people who said them, and from different points of view." 347

Child pornography law represses sexual representations of children in child

pornography, but it also produces a new kind of sexual representation of

children - child pornography law. And there may be further harm in that

representation than we care to admit. It is another way in which we saturate

children with sexuality. 348 Of course this shift seems preferable. It still

seems better to have proliferating discourses about the danger of child

exploitation than to have the exploitation itself. But if we take the argument

seriously - that speech can expand what it critiques, 349 that the very act of

putting child sexuality into an official discourse has [*273] ensnared us

further into a pedophilic web 350 - then the benefits gained from this shift

seem less obvious than they once did. Given the choice, child pornography law

still remains preferable to child pornography. But the two have more in common

than we might like to think.

Conclusion

"She says she only said 'if.'"

"But she said a great deal more than that!" the White

Queen moaned, wringing her hands... .

"I'm sure I didn't mean - " Alice was beginning, but the

Red Queen interrupted her impatiently.

"That's just what I complain of! You should have meant!

What do you suppose is the use of a child without any meaning?"

- Lewis Carroll 351

Child pornography law, and the culture in which it has grown, allow us an

occasion to reconsider some basic assumptions that underlie the First Amendment

- questions about the relationship between prohibition and desire, between

censorship and speech, between law and culture. Censorship law does not only

react to cultural trends. It also reflects, amplifies, and creates them.

In our present culture of child abuse, is child pornography law the solution or

the problem? My answer is that it is both. This reading pictures law and culture

as unwitting partners. Both keep the sexualized child before us. Children and

sex become inextricably linked, all while we proclaim the child's innocence. The

sexuality prohibited becomes the sexuality produced.

FOOTNOTES:

n1. Quoted in Sandor Ferenczi, First Contributions to Psycho-Analysis 254

(1980).

n2. The Ferber case, for example, involved two films of young boys masturbating

that were sold at a Manhattan adult bookstore. New York v. Ferber, 458 U.S. 747,

751-53 (1982).

n3. Andrew Vachss, Age of Innocence, Guardian (London), April 17, 1994, at 14.

n4. Ferber, 458 U.S. at 756, 764 (holding that "states are entitled to greater

leeway in the regulation of pornographic depictions of children" and that "child

pornography ... is unprotected by the First Amendment").

n5. Compared to other areas of First Amendment law, child pornography has been

largely unexamined. Few law review articles have been written on the subject of

child pornography and the First Amendment. The following articles discuss the

issue in depth: Debra D. Burke, The Criminalization of Virtual Child

Pornography: A Constitutional Question, 34 Harv. J. on Legis. 439 (1997); L.

Steven Grasz & Patrick J. Pfaltzgraff, Child Pornography and Child Nudity: Why

and How States May Constitutionally Regulate the Production, Possession, and

Distribution of Nude Visual Depictions Of Children, 71 Temp. L. Rev. 609, 611-12

(1998); Josephine R. Potuto, Stanley + Ferber = The Constitutional Crime of

At-Home Child Pornography Possession, 76 Ky. L.J. 15, 80 (1987-1988); John

Quigley, Child Pornography and the Right to Privacy, 43 Fla. L. Rev. 347, 348

(1991); Frederick Schauer, Codifying the First Amendment: New York v. Ferber,

1982 Sup. Ct. Rev. 285, 317; Ronald W. Adelman, The Constitutionality Of

Congressional Efforts To Ban Computer-Generated Child Pornography: A First

Amendment Assessment Of S.1237, 14 J. Marshall J. Computer & Info. L. 483

(1996); Sandra Zunker Brown, First Amendment - Nonobscene Child Pornography and

Its Categorical Exclusion from Constitutional Protection: New York v. Ferber,

102 S. Ct. 3348 (1982), 73 J. Crim. L. & Criminology 1337 (1982); Lisa S. Smith,

Private Possession of Child Pornography: Narrowing At-Home Privacy Rights, 1991

Ann. Surv. Am. L. 1011; David T. Cox, Litigating Child Pornography and Obscenity

Cases in the Internet Age, 4.2 J. Tech. L. & Pol'y 1 (1999), at

http://journal.law.ufl.edu/techlaw/4-2/cox.html.

In contrast to the limited number of articles, there has been a significant

number of student notes, particularly on the subject of child pornography on the

Internet. Even so, the number of notes about child pornography is dramatically

smaller than for notes addressing obscenity or adult pornography. Several

articles and notes have analyzed child pornography laws in order to consider

mens rea requirements. Others have examined the issues of statutory

interpretation and scienter based on the case United States v. X-Citement Video,

Inc., 513 U.S. 64 (1994).

One further explanation for the relative absence of interest by legal scholars

in this field is that it has to do with children. As an art historian writes,

"My own academic field dismisses the subject of the child as being trivial and

sentimental, good only for second-rate minds and perhaps for women." Anne

Higonnet, Pictures of Innocence: The History and Crisis of Ideal Childhood 13

(1998).

n6. Amy Adler, Inverting the First Amendment, 149 U. Pa. L. Rev (forthcoming

April, 2001) [hereinafter Adler, Inverting the First Amendment]. In this

separate article, I argue that the developments in child pornography law are of

serious and unappreciated doctrinal significance. As both the definition of

child pornography and the rationales for banning it have expanded, they have

mutually undermined one another. These twin developments have had a synergistic

effect: The result is that child pornography law has drifted quite far from its

original purpose, to protect children from sexual abuse. And in doing so, child

pornography law has introduced into the First Amendment a radical view of

speech, how it works and why we restrict it.

n7. Perhaps only adolescence.

n8. Vikki Bell, Interrogating Incest: Feminism, Foucault, and the Law 2 (1993);

Ian Hacking, The Making and Molding of Child Abuse, 17 Critical Inquiry 253

(1991) [hereinafter Hacking, Making and Molding]; see also Florence Rush, The

Best Kept Secret: Sexual Abuse of Children (1980).

n9. Infra notes 28-43 and accompanying text.

n10. Philip Jenkins, Moral Panic: Changing Concepts of the Child Molester in

Modern America 147 (1998) (quoting Ernest Volkman & Howard L. Rosenberg, The

Shame of the Nation, Fam. Wkly., June 2, 1985, at 4).

n11. Richard Goldstein, The Girl in the Fun Bubble, Village Voice, June 10, 1997

at 41 [hereinafter Goldstein, The Girl in the Fun Bubble].

n12. Infra note 36 and accompanying text.

n13. Infra Part I.B.1.

n14. Infra Part IV.A.

n15. See, e.g., United States v. Dost, 636 F. Supp. 828, 833 (S.D. Cal. 1986)

(observing that a 14-year-old girl in photograph has "sexually coy attitude,

staring directly at the camera with her head slightly bent to the side").

n16. Knox v. United States, 32 F.3d 733, 746 (3d Cir. 1994) (discussing the

discernibility of young girl's genitals through "thin but opaque clothing");

Knox v. United States, 977 F.2d 815, 819 (3d Cir. 1992) (evaluating medical

treatises to determine whether the inner thigh is part of the "pubic area"); see

also infra notes 274-305 and accompanying text.

n17. For some of the burgeoning literature on the unintended consequences of

legal regulation, see Richard H. McAdams, The Origin, Development, and

Regulation of Norms, 96 Mich. L. Rev. 338, 386-87 (1997) (discussing conflict

between "group norms" and "societal norms"); Richard H. Pildes, The Unintended

Cultural Consequences of Public Policy: A Comment on the Symposium, 89 Mich. L.

Rev. 936, 937-38 (1991) (suggesting that some public policies may have

"unintended cultural consequences"); Cass R. Sunstein, Congress, Constitutional

Moments, and the Cost-Benefit State, 48 Stan. L. Rev. 247, 261 (1996) (exploring

"myopic approach" of some regulations that lead to bad unintended consequences);

Cass R. Sunstein, Paradoxes of the Regulatory State, 57 U. Chi. L. Rev. 407,

412-29 (1990) (exploring unintended consequences of regulatory measures).

n18. Cf. William J. Stuntz, The Uneasy Relationship Between Criminal Procedure

and Criminal Justice, 107 Yale L.J. 1, 3-4 (1997) (describing a "perverse"

relationship between criminal procedure and substantive criminal law).

n19. My focus is on child pornography law as opposed to other laws governing

child abuse. Although I believe that an investigation of some of those laws

would add weight to my argument, I focus on child pornography law exclusively

for two reasons: First, a limited case study allows for closer analysis; and

second, part of my analysis depends on problems of language and representation

that are unique to censorship law.

n20. I use the word "culture" against the backdrop of an enormous body of

scholarship, too extensive to cite here, in which the meaning of the term

"culture" is hotly contested. One significant meditation on the meaning of

culture was offered by anthropologist Clifford Geertz. Geertz once described

culture as "a set of control mechanisms - plans, recipes, rules, instructions

... for the governing of behavior." Clifford Geertz, The Interpretation of

Cultures 44 (1973). For a recent summary of the historically contingent nature

of the term "culture," see Sally Engle Merry, Law, Culture and Cultural

Appropriation, 10 Yale J.L. & Human. 575, 579-85 (discussing changing meanings

of "culture"). Debates about the meaning of "culture" can present significant

practical questions. See, e.g., Benedict Kingsbury, "Indigenous Peoples" in

International Law: A Constructivist Approach to the Asian Controversy, 92 Am. J.

Int'l L. 414, 414-16 (1998) (discussing the contested definition of cultural

identity in international law and politics, and its implications for the concept

of "indigenous peoples").

n21. John Hart Ely, Democracy and Distrust 112 (1980).

n22. Florence Rush, The Best Kept Secret: Sexual Abuse of Children (1980).

n23. See, e.g., Diane Holloway, Young and Sexy Got Old Fast, Austin

Am.-Statesman, Dec. 27, 1992, at 5 (describing popularity of child abuse

dramas); Lee Margulies, Focus on Fantasy and Nightmares, L.A. Times, Feb. 8,

1986, at 13 (describing CBS "movie of the week" about child abuse).

n24. David Lauter & James Gerstenzang, Accuracy of Bush, Clinton Accusations

Varies, L.A. Times, Oct. 11, 1992, at A36 (describing Bush/Clinton feud over

child abuse statistics in Arkansas during Clinton's tenure as governor).

n25. For one of the many books documenting media obsession with child sexual

abuse, see Louise Armstrong, Rocking the Cradle of Sexual Politics 206 (1994)

("It was now [by 1993] a rare day when incest was not on the menu [of television

shows].").

n26. For example, Oprah Winfrey, Roseanne Barr, and Suzanne Somers have all

publicly revealed that they were sexually molested as children. See Leslie

Miller, Sexual Abuse Survivors Find Strength to Speak in Numbers, USA Today,

Aug. 27, 1992, at 6D. One former Miss America who revealed her childhood

victimization has now become a spokeswoman for incest victims. See Marilyn Van

Debur Atler, Speaking the Unspeakable, Chi. Trib., May 26, 1991, at 3

(describing her abuse by her father from the age of five to eighteen).

n27. New York v. Ferber, 458 U.S. 747, 758 (1982) (stating that "the

distribution of [child pornography] is intrinsically related to the sexual abuse

of children").

n28. Attorney General's Commission on Pornography, Final Report 406 (1986)

[hereinafter Attorney General's Report] ("Child pornography is child abuse.");

142 Cong. Rec. S-11900 (daily ed. Sept. 30, 1996) (statement of Sen. Biden) ("At

the heart of the analysis ... is a very straightforward idea: Children who are

used in the production of child pornography are victims of abuse, plain and

simple. And the pornographers, also plainly and simply, are child abusers.");

see also 132 Cong. Rec. S-14225-01 (daily ed. Sept. 29, 1986) (statement of Sen.

Roth) ("Those who advertise in order to receive or deal in child pornography and

child prostitution are as guilty of child abuse as the actual child molester ...

."); Tina M. Beranbaum et. al., Child Pornography in the Late 1970s in Child

Pornography and Sex Rings 9 (Ann W. Burgess, ed. 1984). See generally Jenkins,

supra note 10, at 148 ("The belief that child pornography represented both the

direct product and immediate cause of criminality made it easy to enlist support

for [its] suppression ... ."); The Child Pornography Prevention Act of 1995

Before the Comm. on the Judiciary of the United States Senate, 103rd Cong.

(1996) (statement of Bruce A. Taylor, President and Chief Counsel, National Law

Center for Children and Families) ("Pornography is at the center of the sexual

exploitation of children. It is used for enticement, seduction, instruction,

blackmail, trade, and sale.").

n29. Ferber, 458 U.S. at 759 n.10 (quoting David P. Shouvlin, Preventing the

Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545

(1981)); see also William A. Stanmeyer, The Seduction of Society 88 (1984)

("Child pornography is the worst form of child abuse.").

n30. Ferber, 458 U.S. at 759 n.10 ("Because the child's actions are reduced to a

recording, the pornography may haunt him in future years, long after the

original misdeed took place.") (quoting Shouvlin, supra note 29, at 545). The

Court wrote that "the materials produced are a permanent record of the

children's participation and the harm to the child is exacerbated by their

circulation." Id. at 759. The Court went on to explain that the production of

child pornography is a "low-profile, clandestine industry" and that the "most

expeditious if not the only practical method of law enforcement may be to dry up

the market for this material" by punishing its production and distribution. Id.

at 760.

n31. Osborne v. Ohio, 495 U.S. 103, 111 (1990) (citing Attorney General's

Report, supra note 28, at 649).

n32. Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, 110 Stat.

3009-26. This view of child pornography is similar to a familiar feminist

argument against pornography: that pornography is the theory and rape is the

practice. See Juliann Whetsell-Mitchell, Rape of the Innocent: Understanding and

Preventing Child Sexual Abuse 209-10 (1995). For discussion of the

constitutionality of the 1996 Act, see infra notes 196-305; see also Adler,

Inverting the First Amendment, supra note 6 (criticizing the Act). There are at

least two other familiar arguments about the relationship between child

pornography and child abuse: First, that victims of either form of abuse will

grow up to become victimizers who perpetuate the "cycle of abuse", Hearing

Before the Comm. on the Judiciary, Subcomm. on Crime 4 (1997) (statement of D.

Douglas Rehman); second, as the Ferber Court stated, sexually exploited children

may be predisposed to self-destructive behavior such as drug and alcohol abuse

or prostitution. Ferber, 458 U.S. at 758 (citing Densen-Gerner, Child

Prostitution and Child Pornography: Medical, Legal, and Societal Aspects of the

Commercial Exploitation of Children (1980)).

Although public discussion often presumes that there is a strong relationship

between use of child pornography and molestation of children, the statistics on

this connection are uncertain, not only in terms of causation, but even in terms

of correlation. For example, in the Congressional testimony that prompted

Congress to revise the law, an expert testified that most child molesters

possess pornography. But not all possess child pornography; some possess only

adult pornography. And there are, for obvious reasons, no studies of which I am

aware that document how many people possess child pornography but do not molest

actual children. The Child Pornography Prevention Act of 1995: Hearing Before

the Comm. on the Judiciary of the U.S. Senate (statement of Bruce Taylor, Nat'l

Law Center for Center for Children and Families), supra note 28, at 21.

n33. For decisions repeating this assumption, which persists in all the case law

on child pornography, see, e.g., United States v. Arvin, 900 F.2d 1385, 1389

(9th Cir. 1990); United States v. Andersson, 803 F.2d 903, 907 n.3 (7th Cir.

1986).

n34. Attorney General's Report, supra note 28, at 406 (emphasis in original).

n35. See infra notes 44-49 and accompanying text. Although I raise questions

about the panic surrounding child sexual abuse and the way in which such panic

has obscured accurate figures, I feel obliged to say that I do not doubt that

child abuse happens. That said, my interest in this Article is not to uncover

the "true" statistics on child sexual abuse, but rather to look at the way in

which the statistics and everything else about the subject have come to be such

a charged cultural preoccupation. Therefore, I do not purport to claim that some

of the statistics others have offered are "true" and that other statistics are

"false." My decision not to "take sides" does not stem from a doubt that there

is a truth about child sexual abuse. Rather, it stems from two other factors:

(1) my doubts about the ability of statistics to accurately reflect the truth in

such an ideologically embattled and difficult to document crisis; and more

importantly, (2) the focus of this Article, which is not to uncover the truth or

falsity of the statistics, but rather to show that the statistics are contested,

and to understand the implications of that contest.

This focus is in keeping with my approach in this Article. My method in this

Part as well as in Part II emulates Foucault's practice of "genealogy." Foucault

described genealogy, his empirical, documentary approach to history, as a

"history of the present." Michel Foucault, Discipline and Punish 31 (Alan

Sheridan trans., Pantheon Books 1977). Foucault's method "avoids the search for

what 'really happened'" and asks instead how our particular way of thinking

about and speaking about things arose. Bell, supra note 8, at 46. The goal is

not to get at the origins, but to "identify the accidents, the minute deviations

- or conversely, the complete reversals - ... that gave birth to those things

that continue to exist and have value for us." Michel Foucault, The Foucault

Reader 81 (Paul Rabinow ed., 1984). At another point, Foucault described his

method as an effort "to question over and over again what is postulated as

self-evident, to disturb people's mental habits." Michel Foucault, Politics,

Philosophy, Culture: Interviews and Other Writings 1977-1984, at 265 (Alan

Sheridan trans., Lawrence D. Kritzman ed., 1988).

n36. The word "panic" appears constantly in literature about the sexual abuse

movement. See, e.g., Jenkins, supra note 10, at 219-20 (noting that isolated

events of sexual abuse often give rise to a sense of urgency within communities

and among policymakers). The use of the term "panic" in this context tends to

refer to the "moral panic" theory developed in the 1970s by British

sociologists, most prominently Stuart Hall. See Stuart Hall, Policing the Crisis

(1978); see also Stanley Cohen, Folk Devils and Moral Panics 9-26 (1972)

(illustrating the emergence of collective episodes of juvenile deviance and the

moral panics they both generate and rely upon for their growth); Erich Goode &

Nachman Ben-Yehuda, Moral Panics 23-24 (1994) (attributing the term "moral

panic" to Stanley Cohen).

n37. Bell, supra note 8, at 2.

n38. Hacking, Making and Molding, supra note 8, at 257.

n39. Id. at 253; see also Laura Kipnis, Bound and Gagged: Pornography and the

Politics of Fantasy in America 5 (1996) ("Pedophilia is the new evil empire of

the domestic imagination: now that communism has been defanged, it seems to

occupy a similar metaphysical status as the evil of all evils ... .").

n40. James R. Kincaid, Erotic Innocence: The Culture of Child Molesting 79

(1998) [hereinafter Kincaid, Erotic Innocence]. The notion that child sexual

abuse is on the rise is consistent with what some scholars describe as an

"escalation theory" of sexual crime. One scholar asserts that this theory has

been "the prevailing orthodoxy for most of the twentieth century." Jenkins,

supra note 10, at 9.

n41. Hacking, Making and Molding, supra note 8, at 257. In spite of the constant

onslaught of discussion about child sexual abuse, there remains a surprising

tendency to refer to it as a still undiscovered secret. See, e.g., Cynthia Grant

Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention in Sexual

Abuse Survivor Therapy, 109 Harv. L. Rev. 549, 551 (1996) (arguing that our

"culture has been slow to accept the continuing reality of child sexual abuse").

n42. David Finkelhor, A Sourcebook on Child Sexual Abuse 10 (1986).

n43. Frederick Schauer, Codifying the First Amendment: New York v. Ferber, 1982

Sup. Ct. Rev. 285, 311.

n44. Kathleen Coulborn Faller, Department of Health and Human Services,

Administration for Children and Families, Child Sexual Abuse: Intervention and

Treatment Issues 16 (1993) (emphasis added); see also Louise Armstrong, Rocking

the Cradle of Sexual Politics 52 (1994) (noting that "statistics shot wildly all

over the place" in the 1980s). A commonly cited figure is that one out of three

girls in the United States is sexually abused before the age of eighteen. See

Ellen Bass & Laura Davis, The Courage to Heal 24 (3d ed. 1994). The New York

Times recently reported that experts estimated that about twenty to twenty-five

percent of female adults have been sexually abused as children, up from an

estimate of eighteen percent in 1994. See Jason DeParle, Early Sex Abuse Hinders

Many Women on Welfare, N.Y. Times, Nov. 28, 1999, at 1.

n45. Faller, supra note 44, at 17.

n46. Although most would agree that reporting has improved, some experts still

fear that child sexual abuse is vastly under-reported. See, e.g., Carey

Goldberg, Getting To the Truth in Child Abuse Cases: New Methods, N.Y. Times,

Sept. 8, 1998, at F1 (quoting Dr. Carolyn Newberger, an expert on sexual abuse

at the Harvard Medical School, on studies suggesting that child abuse is still

under-reported).

n47. A consistent definition of sexual abuse has yet to arise. For a discussion

of the expanding definition of child sexual abuse, see Kincaid, Erotic

Innocence, supra note 40, at 79-80. One problem in defining sexual abuse is the

complexity of the abusive process by which children are often emotionally lured

into sexual relations with adults. For example, psychotherapist Dr. Mic Hunter,

an expert on sexually abused boys, reports that "People like to talk about the

sexual assault of children ... but that rarely happens, because it does not need

to." Frank Bruni, In an Age of Consent, Defining Abuse by Adults, N.Y. Times,

Nov. 9, 1997, at 3 (quoting Dr. Mic Hunter). Another expert explains that

although it has been "demonized" and "branded heresy" to admit, children

"sometimes participate without protest - and with apparent enthusiasm - in their

victimization." Id.

For documentation of the shift in legal perceptions of child sexual abuse, see

William E. Nelson, Criminality and Sexual Morality in New York, 1920-1980, 5

Yale J.L. & Human. 265, 266-67 (1993). Nelson describes the shift over the

course of the twentieth century in courts' approaches to child sodomy cases;

whereas once the young boy accusers had been dismissed as "half-witted youths,"

they are now portrayed as "child victims." Id. at 336 (comparing People v.

Deschessere, 74 N.Y.S. 761, 764 (N.Y. App. Div. 1902) with People v. Fielding

385 N.Y.S.2d 17, 18-19 (N.Y. App. Div. 1976)).

n48. In fact, a group of scholars have formed calling themselves the "new

hysterians" (playing on the humanities movement called "new historians"). These

scholars share an interest in modern outbreaks of mass hysteria, in which they

include child sexual abuse as a prominent example. Elaine Showalter, Hystories:

Hysterical Epidemics and Modern Culture 7-8, 144-46 (1997).

n49. Nancy Scheper-Hughes & Howard F. Stein, Child Abuse and the Unconscious in

American Popular Culture, in The Children's Culture Reader 178 (Henry Jenkins

ed., 1998).

n50. See, e.g., Joel Best, Threatened Children: Rhetoric and Concern About

Child-Victims 171 (1990) ("Why did concern about threats to children become

widespread in the late 1970s and early 1980s [when] there was nothing new about

physical or sexual abuse?").

n51. Of course, there were earlier attempts to protect children, but as the text

in this section should show, the new movement has a distinctive character. The

most prominent child abuse movement prior to the seventies dates to the turn of

the last century, and the foundation of the society for prevention of cruelty to

children, an outgrowth of The American Society for the Prevention of Cruelty to

Animals (ASPCA). Traditional obscenity law was premised on concern for the

effect of obscenity on a vulnerable child audience. See The Queen v. Hicklin, 3

Q.B. 360, 369-73 (1868) (basing obscenity definition on the effects of isolated

passages on the weakest members of society); see generally Walter Kendrick, The

Secret Museum (1987) (recounting history of obscenity regulation, including

Anthony Comstock's claim that vice threatened to corrupt the morals of

children). Modern obscenity law also evidences special concern for the child

audience. See Ginsberg v. New York, 390 U.S. 629, 634-37 (1968) (establishing

"variable obscenity" standard; upholding statute prohibiting the sale of

material to children when purchase of the same material by adults is protected).

n52. Hacking, Making and Molding, supra note 8, at 266 (citing Henry Kempe et

al., The Battered-Child Syndrome, 181 JAMA 17 (1962) and The Battered Child

Syndrome, 181 JAMA 42 (1962) (offering the dubious statistic that more children

died from child abuse than from leukemia, cystic fibrosis, or muscular

dystrophy)); see also Lela B. Costin et al., The Politics of Child Abuse in

America 115-17 (1996) (examining the effects of Kempe's article on the attitudes

of lawmakers toward child abuse); Scheper-Hughes & Stein, supra note 49, at 178

("When C. Henry Kempe and his associates (1962) at Colorado General Hospital

created a new diagnostic entity - the 'Battered Child Syndrome' - the American

public finally sat up and took notice.").

n53. Hacking, Making and Molding, supra note 8, at 269.

n54. According to Hacking, a 1975 article was the first to make the connection.

Id. at 275 (citing Suzanne M. Sgroi, Sexual Molestation of Children: The Last

Frontier in Child Abuse, Children Today, May-June 1975, at 18). An article in

Ms. magazine popularized the issue in 1977. Ellen Weber, Incest: Sexual Abuse

Begins at Home, Ms., Apr. 1977, at 64.

n55. See Hacking, Making and Molding, supra note 8, at 278.

n56. Id. This is striking in contrast to those studies that suggest that child

sexual abuse accounts for only a fraction of all child abuse. See Margaret

Talbot, Against Innocence, New Republic, Mar. 15, 1999, at 27, 31 (citing a 1997

study finding that violence and neglect constitute seventy-six percent of child

abuse cases, while only 8 percent of cases involve sexual abuse). But see supra

notes 42-47 and accompanying text on the inconclusiveness of studies about child

abuse.

n57. See Ian Hacking, Rewriting the Soul: Multiple Personality and the Sciences

of Memory 56-58 (1995) [hereinafter Hacking, Rewriting the Soul].

n58. See, e.g., Louise Armstrong, Kiss Daddy Goodnight: A Speak Out On Incest

231-42 (1978) (telling her own and other's stories of sexual abuse by male

caretakers in an "attempt to rescue the subject from both hysteria and

denial.").

n59. Id. at 3-6. Other significant books in the feminist movement to expose

incest include Sandra Butler, Conspiracy of Silence: The Trauma of Incest

188-200 (1978); Susan Forward & Craig Buck, Betrayal of Innocence: Incest and

Its Devastation 163-78, 181-86 (1978); Karin C. Meiselman, Incest: A

Psychological Study of Causes and Effects with Treatment Recommendations 331-49

(1978).

n60. Jeffrey Moussaieff Masson, The Assault on Truth: Freud's Suppression of the

Seduction Theory 189-93 (1984); Alice Miller, Thou Shalt Not Be Aware: Society's

Betrayal of the Child 145-59 (1984). It is fair to say that Freud's

understanding of childhood sexuality informs most of his work. His most extended

treatment of the subject may be found in Sigmund Freud, Three Essays on the

Theory of Sexuality (James Strachey trans., Basic Books 1975) (1905).

n61. Freud still believed that child sexual abuse occurred. The change was that

he came to see it as a far less prevalent cause of psychopathology than he had

previously supposed. See, e.g., Lawrence Wright, Remembering Satan 160 (1994)

(discussing Freud's contention that molestation still retained a role, albeit "a

humbler one" in the etiology of neuroses).

n62. The attacks on Freud were part of a larger movement of Freud revisionism.

So bitter are the disputes that the Library of Congress, under pressure from

Freud's critics, chose to postpone an exhibition. See, e.g., Margaret Talbot,

The Museum Show Has an Ego Disorder, N.Y. Times Mag., Oct. 11, 1998, at 56

(discussing controversy among Freud scholars and critics). The attacks have also

been central in the recovered memory debates and the debates over multiple

personality disorder. See infra notes 76-82 and accompanying text.

n63. As detailed below, see infra note 76 and accompanying text, critics charge

that many of the crises over sexual abuse were implanted by (usually

well-meaning but misguided) therapists.

n64. See Hacking, Making and Molding, supra note 8, at 255-56. Typical reporting

emphasizes the diffuse, ambiguous nature of the threat. For example, a postal

investigator who testified before the Senate Judiciary Committee as it

considered legislation in 1996 stated that pedophiles include "doctors,

teachers, lawyers, law enforcement officers, clergymen, and businessmen... .

Many hold respected positions in their community and have concealed their

interest in child pornography for years. The hobbies of offenders include

coaching youth sports, dance instruction, leading youth groups, baby-sitting,

and amateur photography." Child Pornography Prevention Act of 1995: Hearings on

S. 1237 Before the Senate Judiciary Comm., 104th Cong. 23 (1996) (testimony of

Postal Chief Jeffrey J. Dupilka); see also Johnette Howard & Lester Munson,

Betrayal of Trust: The Case Against a Top Volleyball Coach Focuses Attention on

the Sexual Abuse of Young Athletes, Sports Illustrated, Apr. 21, 1997, at 66

(describing pattern of sexual abuse by prominent volleyball coach in Chicago);

William Nack & Don Yaeger, Every Parent's Nightmare, Sports Illustrated, Sept.

13, 1999, at 40 (describing problem of sexual abuse in youth sports); Trust and

Betrayal, Primetime Live (ABC television broadcast, March 12, 1997) (transcript

available at 1997 WL 15362233) (reporting that professional hockey player

Sheldon Kennedy was once sexually abused by his coach).

n65. Richard Goldstein, The Girl in the Fun Bubble, supra note 11, at 38.

Goldstein writes that "no other crime so preoccupies the press." Id.

n66. Hacking, Rewriting the Soul, supra note 57, at 66 ("The child abuse

movement is the most important piece of consciousness-raising of the past three

decades or so.").

n67. An exploration of the social factors that explain why child sexual abuse

has emerged so forcefully in public consciousness is a subject for another

article. I suspect that the following factors, among others, are significant:

changing sexual mores, the rise of consumer culture, the saturation of the

culture with photographic images in advertising and mass and electronic media,

changes in family structure, and reactions to the rise of feminism and the

changing role of women.

n68. Maryland v. Craig, 497 U.S. 836, 840 (1990) (analyzing Sixth Amendment

Confrontation Clause in the context of a child abuse prosecution involving a day

care center); David Finkelhor et al., Nursery Crimes 13 (1988) (reporting study

conducted by Family Research Laboratory on sexual abuse in day care).

It is interesting that day care proved to be one of the early sites for panic

over child sexual abuse. Day care is a highly symbolic marker of the changing

roles of women. It is where women, spurred by the budding feminist movement to

enter the workforce, left their children. This suggests that it might be

fruitful to probe the connection between rising anxiety over child sexual abuse

in the late 1970s and hostility toward the rising feminist movement.

n69. For some of the prominent books describing the movement, as well as some of

those driving and attacking it, see Debbie Nathan & Michael Snedeker, Satan's

Silence: Ritual Abuse and the Making of a Modern American Witch Hunt (1995);

Richard Ofshe & Ethan Watters, Making Monsters: False Memories, Psychotherapy,

and Sexual Hysteria (1994); David Sakheim & Susan E. Devine, Out of Darkness:

Exploring Satanism and Ritual Abuse (1992); Wright, supra note 61, at 193-200

(recounting the story of one family in which the daughters' recovered memories

of satanic ritual sexual abuse led to the conviction of their father and

others).

n70. David Shaw, Reporter's Early Exclusives Triggered a Media Frenzy, L.A.

Times, Jan. 20, 1990, at A1:

The prosecution charged in March, 1984, that the McMartin Pre-School was, in

effect, a front for a massive child pornography ring ... . The district

attorney, the FBI, the U.S. Customs Service and various local law enforcement

agencies and task forces ... did not find a single one of the "millions" of

photographs and films that [the deputy district attorney] had said were taken.

Philip Jenkins argued that the media-generated panic over child pornography

"augmented the sensational appeal" of the day care cases by adding a plausible

motive for the abuse: the production of child pornography. Jenkins, supra note

10, at 146.

n71. Seth Mydans, 7 Years Later, McMartin Case Ends in a Mistrial, N.Y. Times,

July 28, 1990, at 1 (describing trial of Raymond Buckey as "longest and

costliest" in U.S. history). Four members of the McMartin family and three

teachers were accused of molesting the children and using them in satanic

rituals. Peggy McMartin Buckey was acquitted after a two-year trial (and two

years in jail). Her son, Raymond Buckey, underwent two trials and five years in

jail before charges against him were dismissed in 1990. Id.

Other prominent day care cases involving multiple victims and defendants

included the Fells Acres Day School case in Malden, Massachusetts (1985), see

Goldberg, supra note 46, at F1; the "Wee Care Day Nursery" case in Maplewood, NJ

(1985), see State v. Michaels, 642 A.2d 1372, 1384-85 (N.J. 1994) (reversing

conviction of day care worker at "Wee Care"); the "Little Rascals Day Care" case

in Edenton, North Carolina (1989), see Sex Abuser Gets 12 Life Terms in Day-Care

Case, N.Y. Times, April 24, 1992, at A14. The Little Rascals case was the

subject of a Frontline documentary. Frontline: The Search for Satan (PBS

television broadcast, Oct. 24, 1995).

n72. For some of the many significant works investigating - and attacking - the

recovered memory movement, see Ofshe & Watters, supra note 69, at 1-13, 289-304

(arguing that recovered memory therapy is often carried out by "poorly trained,

overzealous, or ideologically driven" psychotherapists); Wright, supra note 61,

at 160.

n73. Frederick Crews, The Memory Wars: Freud's Legacy in Disrepute 159 (1995).

n74. Jenkins, supra note 10, at 128.

n75. Michelle Smith & Lawrence Pazder, Michelle Remembers (1980).

n76. Wright, supra note 61, at 161. For other books, in addition to Michelle

Remembers, that were central to the movement, see Judith Lewis Herman, Trauma

and Recovery (1992); Bass & Davis, supra note 44.

n77. See Hacking, Rewriting the Soul, supra note 57, at 115 (noting brutality of

rhetoric in these wars; describing one allegation that debunkers of recovered

memory are like "good Germans" who facilitated the "Nazis.").

n78. See generally Frank W. Putnam, Diagnosis and Treatment of Multiple

Personality Disorder 47-50 (1989) (reporting the relationship between childhood

sexual abuse and the incidence of multiple personality disorder).

n79. Hacking, Rewriting the Soul, supra note 57, at 256.

n80. Id. at 8-9.

n81. Id.

n82. Id. It was first created as a diagnostic criteria in 1982. Hacking traces

the contemporary movement to 1973 and the book (and later movie) Sybil,

published in 1973. Id. at 41-43 (citing Flora Rheta Schreiber, Sybil (1973)).

n83. "By 1994 over three hundred cases involving repressed memory had been filed

in American courts." Showalter, supra note 48, at 146.

n84. Hacking, Rewriting the Soul, supra note 57, at 14.

n85. In response to the explosion of cases in the last decade, there have been

approximately 500 studies conducted on the subject of the "suggestibility" of

children's memories when questioned by adults. See Goldberg, supra note 46. As

with studies of child abuse in general, the research in this area is marked by

discord. The New York Times article, for example, describes two different

"camps" of researchers on child suggestibility. Id.

n86. Hacking, Rewriting the Soul, supra note 57, at 121.

n87. Indeed, many have noted the extraordinary similarities between those

leading the "backlash" and those leading the war on child sexual abuse. For an

elaborate discussion of the similarities by an FBI investigator who specializes

in child abuse cases, see Kenneth V. Lanning, The "Witch Hunt," The "Backlash"

and Professionalism, 9 APSAC Advisor 4 (Winter 1996); see also James R. Kincaid,

Producing Erotic Children, in The Children's Culture Reader, supra note 49, at

241, 246 [hereinafter Kincaid, Producing Erotic Children]. Kincaid argues that

"both the standard and the backlash stories are so popular [because] they have

about them an urgency and a self-flattering righteous oomph;" both maintain "the

particular erotic vision of children." Id.

n88. See, e.g., Robynn Tysver, Falsely Accused Parents to Get $ 45,000, Omaha

World-Herald, July 16, 1998, at 19 (describing made-for-TV movie about woman who

was falsely accused of child abuse).

n89. See National Ass'n of State Mental Health Program Dirs., Summary of

Responses from Survey on Sexually Violent Predator Commitment

Statutes/Legislation, in "Sexual Predator" Legislation Tool Kit (1997)

(describing various state laws regulating sexual predators). A proliferating

number of Internet sites allow one to track pedophiles. For example,

http://www.sexoffender.com lets one find listings of offenders by state and

county in states that list sex offenders.

n90. The laws are named for Megan Kanka, a seven-year-old who was raped and

murdered in 1994 by a neighbor who had twice been convicted of sexual assault.

See Robert Hanley, Federal Appeals Court Rejects a Challenge to 'Megan's Law,'

N.Y. Times, Apr. 13, 1996, at 23.

Congress encouraged the enactment of registration laws by providing financial

incentives for states to create sex offender registration programs. See 42

U.S.C. 14071 (g)(2), (i) (Supp IV 1998). All fifty states have enacted

registration provisions. See Jane A. Small, Note, Who Are the People in Your

Neighborhood? Due Process, Public Protection, and Sex Offender Notification

Laws, 74 N.Y.U. L. Rev. 1451, 1459 & n.41 (1999). The federal law was amended in

1996, with a provision requiring states to release "relevant information that is

necessary to protect the public." 42 U.S.C. 14071(e). As of late 1997, forty-one

states had a community notification requirement as well. See Alan R. Kabat,

Note, Scarlet Letter Sex Offender Databases and Community Notification:

Sacrificing Personal Privacy for a Symbol's Sake, 35 Am. Crim. L. Rev. 333, 335

(1998) (including a comprehensive survey of the laws of the fifty states and the

District of Columbia).

n91. See Kincaid, Erotic Innocence, supra note 40, at 90-94; Kris W. Druhm,

Comment, A Welcome Return to Draconia: California Penal Law 645, The Castration

of Sex Offenders and the Constitution, 61 Alb. L. Rev. 285 (1997).

n92. Kansas v. Hendricks, 521 U.S. 346, 352-53 (1997). See also Adam J. Falk,

Sex Offenders, Mental Illness and Criminal Responsibility: The Constitutional

Boundaries of Civil Commitment after Kansas v. Hendricks, 25 Am. J.L. & Med.

117, 118 (1999) (noting that civil commitment of sex offenders "occurs for an

indefinite time period").

n93. Communications Decency Act of 1996, Pub. L. No. 104-104, tit. V, 110 Stat.

56, 133-43 (1996).

n94. See Reno v. ACLU, 521 U.S. 844, 881 (1997) (striking down the CDA).

n95. See, e.g., The Children's Online Privacy Protection Act of 1998, Pub. L.

No. 105-277, 112 Stat. 2681-728 (codified at 15 U.S.C. 6501-6506) (regulating

the collection and use of personal information gathered from children on the

Internet).

n96. See Pub. L. 105-314, tit. I, 101(a), 112 Stat. 2974, 2975 (codified at 18

U.S.C. 2425).

n97. 47 U.S.C. 231(a)(1) (2000). The Eastern District of Pennsylvania enjoined

enforcement of the statute. See ACLU v. Reno, 31 F. Supp. 2d 473, 477 (E.D. Pa.

1999). See also Jill Jacobson, Comment, The Child Online Protection Act:

Congress's Latest Attempt to Regulate Speech on the Internet, 40 Santa Clara L.

Rev. 221, 243-50 (1999) (arguing that COPA is unconstitutional despite its

narrower scope than the CDA); Heather L. Miller, Note, Strike Two: An Analysis

of the Child Online Protection Act's Constitutional Failures, 52 Fed. Comm. L.J.

155, 168-87 (1999) (same).

n98. Goldstein, The Girl in the Fun Bubble, supra note 11, at 38.

n99. See, e.g., Scheper-Hughes & Stein, supra note 49, at 179 (describing "child

abuse as a key (or master) social problem of our times").

n100. Kincaid, Erotic Innocence, supra note 40, at 16. Victims of child

pornography in particular are said to have been "emotionally and spiritually

murdered." Judianne Densen-Gerber, What Pornographers are Doing to Children,

Redbook, Aug. 1977, at 86. Some legislative schemes reflect the view that child

pornography is worse than murder. Compare, e.g., Ariz. Rev. Stat. 13-604.01(B),

(D) (Supp. 1993) with id. 13-701(A) (Supp. 1993) (imposing mandatory minimum

penalty of seventeen years in prison for violation of child pornography law but

only mandatory minimum of ten years for second-degree murder), cited in Arizona

v. Gates, 897 P.2d 1345, 1349 (1994).

n101. For example, a recent article in the New York Times asserted that

childhood sex abuse is an ignored explanation for why so many women fail to make

a successful transition from welfare. DeParle, supra note 44, at 1. The article

noted a correlation between being a victim of childhood sexual abuse and

problems in later life, such as drug and alcohol addiction, receipt of welfare,

mental illness, and victimization through domestic violence. But the article

went on to assert that this correlation amounted to causation, that the early

sexual trauma "explained the roots" of the problems in later life. Indeed, the

article attributed such explanatory force to child sexual abuse that the author

wrote: "Without a recognition of the sexual abuse in their early lives, it is

difficult to understand" how some women arrived on welfare. Id.

n102. Hacking, Rewriting the Soul, supra note 57, at 15. For popular books

critical of this trend, see Alan M. Dershowitz, The Abuse Excuse: And Other

Cop-outs, Sob Stories, and Evasions of Responsibility 3-47 (1994); Wendy

Kaminer, I'm Dysfunctional, You're Dysfunctional 26-27, 152 (1993); Robert

Hughes, Culture of Complaint 7-10 (1993).

n103. Examples of accused murderers who defended themselves, whether at trial or

in the media, by claiming that they were sexually victimized as children include

the notorious Menendez brothers, see Lawrence W. Crispo at al., Jury

Nullification: Law Versus Anarchy, 31 Loy. L.A. L. Rev. 1, 35-36 (1997), and

more recently, the grifter Sante Kimes, who along with her son was convicted of

kidnapping and killing a rich New York woman. Kimes claims that she was sexually

molested as a child. See Mary Voboril, No Credibility: Kidnap Suspect Makes

Dizzying Array of Bogus Claims, Newsday, Oct. 25, 1998, at A06.

n104. The issue has permeated not only the news media, but also contemporary

literature, theater, and art. Examples are so abundant that it would be

impossible to offer a complete list. Here are just a few popular novels that

mine this theme: Dorothy Allison, Bastard out of Carolina 278-91 (1993); Maya

Angelou, I Know Why the Caged Bird Sings 64-69 (1993); Kathryn Harrison,

Exposure 158-65 (1993); Jane Smiley, A Thousand Acres 185-92 (1991).

n105. Maureen Freely, Blowing Hot and Hotter, Observer Review, July 16, 1995, at

12.

n106. See Pat Conroy, The Prince of Tides (1986).

n107. A major 1998 study in the highly respected Psychological Bulletin of the

American Psychological Association found that adults who had been molested as

children did not display significant emotional differences when compared to

other adults who had not been abused. Bruce Rind et al., A Meta-Analytic

Examination of Assumed Properties of Child Sexual Abuse Using College Samples,

124 Psychol. Bull. 22, 46 (1998). The study reviewed and analyzed the data from

fifty-nine previous studies of college students who had reported experiencing

childhood sexual abuse. The study found that students who were sexually abused

were on average only slightly less well-adjusted than other comparable students

and that those differences could be explained by other environmental factors.

The study also argued that the pejorative word "abuse" was inaccurate to

describe many instances of adult-child sex. Congress denounced the study and the

Association, which criticized the study in response. See G.E. Zuriff, Pedophilia

and the Culture Wars, Public Interest, Winter 2000, at 29; see also Richard

Green, Sexual Science and the Law 173-75 (1992) (discussing the methodology of

"sexual science research"). Green questions the methodology of many studies of

child sexual abuse. He argues that legal and social responses to a child's

revelation that he was abused may contribute significantly to the long-term harm

the child suffers. Id. at 173.

n108. James R. Kincaid, Child Loving: The Erotic Child and Victorian Culture 381

(1992) [hereinafter Kincaid, Child Loving].

n109. Cynthia Gorney, Teaching Johnny the Appropriate Way to Flirt, N.Y. Times

Mag., June 13, 1999 at 43; see also Davis v. Monroe County Board of Ed., 526

U.S. 629 (1999) (holding school district accountable for the sexual harassment

of a fifth grade girl by one of her classmates); Judith Levine, A Question of

Abuse, Mother Jones, July-Aug. 1996, at 32 (describing the case of a 9-year-old

boy removed from his family for sexual abuse of his sister); Donahue Show:

Six-Year-Olds Sexually Harassing (CBS television broadcast, Jan. 5, 1994).

n110. Sigmund Freud, Three Contributions to the Theory of Sex in The Basic

Writings Sigmund Freud 561 (A. A. Brill ed. & trans., 1995).

n111. For some of Klein's work on child sexuality, see Melanie Klein, The

Psycho-Analysis of Children (The Writings of Melanie Klein, vol. 2), (Alex

Strachey trans., 1984); The Selected Melanie Klein (Juliet Mitchell ed., 1986).

n112. This is in spite of the attacks described supra notes 60-63, and

accompanying text.

n113. See infra Parts III and IV.

n114. On the proliferation of child abuse "experts - researchers, educators,

clinicians, therapists, and social workers," see Scheper-Hughes & Stein, supra

note 49, at 179.

n115. Attorney General's Report, supra note 28, at 408.

n116. See, e.g., Child's Garden of Perversity, Time, Apr. 4, 1977, at 55

(describing horrific scenes such as a movie of a "ten-year-old girl and her

eight-year-old brother in fellatio and intercourse"); see also Ray Moseley,

Child Pornography: Sickness for Sale, Chi. Trib., May 15, 1977, at 1 (first of

four-part series on child pornography). For a particularly detailed account of

the significance of the year 1977 as a turning point in public concern over

child sexual abuse and child pornography, see Gayle S. Rubin, Thinking Sex:

Notes for a Radical Theory of the Politics of Sexuality, in The Lesbian and Gay

Studies Reader 3, 6-8 (Henry Abelove et al. eds., 1993); see also Pat Califia,

The Age of Consent: The Great Kiddy-Porn Panic of '77, in Public Sex 47-51

(1994) (describing effect of the Kildee-Murphy hearings to formulate legislation

on sexual abuse against children); Jenkins, supra note 10, at 122.

Anti-homosexual fervor also fueled the movement. For example, an expert

testified before the House in 1977 that "most agree that child sex and

pornography is basically a boy-man phenomenon." Sexual Exploitation of Children:

Hearings Before the Subcomm. on Crime of the House Comm. on the Judiciary, 95th

Cong. 205 (1977) (testimony of Kenneth Wooden, Director, Nat'l Coalition of

Children's Justice).

n117. The Supreme Court, 1981 Term, 96 Harv. L. Rev. 62, 141 n.2 (1982).

n118. Id.

n119. See Ron Scherer, New Vice Squads Troll the Web for Child Porn, Christian

Science Monitor, Dec. 17, 1998, at 1. These join the numerous centers for the

prevention of child abuse, such as the National Center for Missing and Exploited

Children, which was founded in 1984. See Jenkins, supra note 10, at 128-29.

n120. See George F. Will, Nasty Work, Wash. Post, Jan. 23, 2000, at B7. Since

1995, Innocent Images has made 487 arrests and achieved 409 convictions. Most of

the 78 non-convictions are in cases still pending. Id.; see also Internet

Security: Hearing Before the Sen. Comm. on Appropriations Subcomm. for the Dept.

of Commerce, Justice, State, the Judiciary, and Related Agencies (2000)

(statement of Louis J. Freeh, Dir. FBI), available at 2000 WL 11068231.

n121. See Robert MacMillan, Cash Sought for Net Child Porn Crackdown, Newsbytes

News Network, Apr. 15, 1999, available at 1999 WL 5121333. The New York State's

Attorney General's Office runs "Operation Ripcord." Id.

n122. See Scott Tillet, FBI Turning Internet Against Child Pornographers,

Network World, Feb. 3, 2000. In 1998, the National Center for Missing and

Exploited children reported that monthly calls to its child pornography

"tipline" increased by more than twenty-five fold in one year. Id. Citizen

groups have joined the battle. For example, SOC-UM, (Saving Our Children -

United Mothers) has identified the web addresses of about 14,000 child

pornography/pedophilia sites; see SOC-UM Organization, http://www.soc-um.org. An

FBI agent says he "wouldn't be nearly as effective without the help of Internet

surfers ... There's just people all over the Internet monitoring... ." C.G.

Wallace, Computer Sleuth Waging War on Child Porn, Salt Lake Trib., Mar. 8,

1999, at B2.

n123. Scherer, supra note 119, at 1.

n124. Tillet, supra note 122.

n125. An FBI agent who works on child pornography stings said "You've got more

lines in the water. And the more lines in the water, the more fish you're going

to catch." Id. But the same agent also told another source that pursuing child

pornographers on line is like "fishing in a pond of hungry fish where you don't

have enough bait." Wallace, supra note 122, at B2. For an analysis of the

expanding legal definitions of child pornography , see infra Part II.B.

n126. Laura J. Lederer, Poor Children Targets of Sex Exploitation, Nat'l

Catholic Rep., Nov. 22, 1996, at 11.

n127. Kenneth V. Lanning, NCAVC, FBI Academy, Investigator's Guide to

Allegations of 'Ritual Child Abuse' 3 (1992).

n128. Florence Rush, Child Pornography, in Take Back the Night: Women on

Pornography 71, 77-78 (Laura Lederer ed., 1980); Carol McGraw, Child Smut

Business Going Underground: Grows Uglier as Customers Trade Children, Not Just

Pictures, Police Say, L.A. Times, Sept. 16, 1985, at 3. Yet another source

suggests that 300,000 to 600,000 minors are involved in a combination of

prostitution and pornography. See Robert Lee Pierce, Child Pornography: A Hidden

Dimension of Child Abuse, in 8 Child Abuse and Neglect 483, 486 (1984).

n129. Free Speech Coalition, http://www.freespeechcoalition.com/industry/truth/

childporn.html (last visited Mar. 20, 2000).

n130. I.C. Jarvie, Child Pornography and Prostitution, in 1 The Sexual Abuse of

Children: Theory and Research 308, 322-26 (1992); see also Lawrence A. Stanley,

The Child Porn Myth, 7 Cardozo Arts & Ent. L.J. 295, 320-21 (1989) (asserting

that the child pornography industry does not exist and was largely destroyed by

the conviction of one woman who was supposedly responsible for eighty percent of

the industry in the United States); Prosecutors Voice Confidence on 2nd Kid Sex

Films Trial, S.D. Union Trib., Feb. 12, 1984, at A3 (detailing the eighty

percent estimate made by prosecutors).

n131. Jenkins, supra note 10, at 122.

n132. Child Pornography: Sickness for Sale, Chi. Trib., May 15, 1977, reprinted

in Sexual Exploitation of Children: Hearings Before the Subcomm. on Crime of the

Comm. on the Judiciary, 95th Cong. 428 (1977).

n133. Jenkins, supra note 10, at 146. Reports stated that most of it was

imported from Europe, especially the Netherlands and Scandinavia, but some was

manufactured domestically. Id.

n134. James S. Granelli, Officials Search for Violations of New Child Porn Laws,

L.A. Times, Sept. 16, 1985, at 3 (quoting postal inspector as saying that

large-scale commercial child pornography industry was no longer in existence).

n135. Attorney General's Report, supra note 28, at 409.

n136. Id. at 410; McGraw, supra note 128, at 3.

n137. Attorney General's Report, supra note 28, at 409.

n138. Best reprints a 1986 California poll that measured public perception of

increased danger to children. Fifty-two percent of those polled said that the

danger of child pornography was "much greater" than it had been ten years

earlier. Best, supra note 50, at 153.

n139. Jenkins, supra note 10, at 147.

n140. Jenkins, supra note 10, at 146. Certainly law enforcement has been

vigilant; see, e.g., Jacobson v. United States, 503 U.S. 540, 541 (1992)

(overturning child pornography conviction because of police harassment and

entrapment of defendant); Stanley, supra note 130, at 298 - -99.

n141. Child Abuse Victims' Rights Act, Pub. L. No. 99-591, 702, 100 Stat.

3341-74 (1986).

n142. H.R. Rep. No. 98-536, at 2 (1983).

n143. I am, of course, borrowing the phrase from Freud's description of the

process by which emotions that have been repressed return in a distorted

fashion. See Sigmund Freud, The Interpretation of Dreams 577 - 78 (James

Strachey trans., 1959) (1900). Because the contents of the unconscious are

indestructible, they always reemerge by "devious routes" into consciousness. J.

Laplanche & J.-B. Pontalis, The Language of Psycho-analysis 398 (Donald

Nicholson-Smith trans., 1973) (1967).

n144. 141 Cong. Rec. S13,542 (1995) (statement of Sen. Hatch regarding Child

Pornography Prevention Act of 1995).

n145. Scherer, supra note 119, at 4.

n146. "The Internet is the ultimate distribution system" for child pornography.

David E. Kaplan, New Cybercop Tricks To Fight Child Porn, U.S. News & World

Rep., May 26, 1997, at 29 (quoting Robert Flores, former head of the Justice

Department's anti-child pornography section). The Internet is "an anonymous

superstore for pedophiles ... They were not only increasing the demand for child

pornography, thereby ensuring that more children would be raped and abused, but

they were creating a community where they could all get together and make

themselves feel better about what they were doing." Michael Heaton, Man Fights

Against Child Porn On Internet: FBI Uses His Data In Arrests, Times-Picayune

(New Orleans), June 2, 1996, at A16 (quoting anti-child porn activist, Barry

Crimmins).

Technological advances have also changed the methods of production. Videotape

and digital cameras have eliminated the dangerous step of film development in

the production process. Nevertheless, child pornographers still get caught while

attempting to get film developed. See, e.g., United States v. Dawn, 129 F.3d

878, 880 (7th Cir. 1997) (describing how film processor notified police after

seeing children performing sexual acts on eight mm movie film brought in by

defendant); Garay v. State, 954 S.W.2d 59, 62 (Tex. App. 1997) (stating that

developer of still photographs notified police).

n147. Scherer, supra note 119 (quoting Gene Weinschenk, director of the U.S.

Customs Service Cybersmuggling Center); see also Cara Tanamachi, Federal

Prosecutors Target Internet Child Pornography, Austin-Am. Statesman, Aug. 24,

1998, at A1 (quoting a U.S. Customs Service Agent who noted sharp rise in

arrests and described child pornography as a "growing problem" that is likely to

keep growing).

n148. Will, supra note 120, at B7.

n149. Adler, Inverting the First Amendment, supra note 6.

n150. See generally Miller v. California, 413 U.S. 15, 24 (1973) (delineating

the current three-pronged obscenity standard); Memoirs v. Massachusetts, 383

U.S. 413 (1966) (stressing that under the Roth obscenity test, a work must be

utterly without social value before it can be considered obscene); Roth v.

United States, 354 U.S. 476 (1957) (holding that "obscenity" is not protected

speech). Under this approach, the Court develops a definition of speech that can

be banned, which then serves as a limit on legislative enactments. It recurs

throughout First Amendment law. For example, it is the approach taken by the

Court in the subversive advocacy cases, which developed over the years into the

current Brandenburg "incitement to imminent lawless action" standard.

Brandenburg v. Ohio, 395 U.S. 444, 449 (1969). Of course, one explanation for

the Court's passive pose in Ferber is that the Court there was upholding a

statute, whereas in Brandenburg, it was invalidating a statute. Arguably,

striking down a statute requires explanation of constitutional limits in a way

that upholding a statute might not. But this was not the case with Roth, the

Court's first obscenity case. Even though the Court was upholding a statute and

Roth's conviction under it, Justice Brennan's opinion nonetheless announced a

standard constitutional definition of obscenity, one that the Court struggled to

revise in Memoirs and finally in Miller.

n151. United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994) (holding

that it was necessary to prove that the defendant knew that the children in the

materials were minors); New York v. Ferber, 458 U.S. 747, 765 (1982) (holding

that in the context of child pornography "criminal responsibility may not be

imposed without some element of scienter"). This requirement is borrowed

directly from obscenity law. See Smith v. California, 361 U.S. 147, 154-55

(1959) (establishing obscenity law scienter requirements).

n152. Again, this was not an innovation unique to child pornography law, but

rather a standard borrowed from obscenity law. See Miller, 413 U.S. at 23-24.

n153. In Massachusetts v. Oakes, 491 U.S. 576 (1989), a case which turned on

mootness, two Justices voted for the plurality's result - to remand the case -

but did not join the plurality's reasoning. Instead, Justice Scalia, joined by

Justice Blackmun, argued that the Court should have reached the merits of the

case. Id. at 588 (Scalia and Blackmun, J.J., concurring). They then opined that

the Massachusetts statute at issue, which criminalized a vast amount of child

nudity and which reached further than any child pornography statute upheld by

the Court, was not overbroad. Id.

n154. Pub. L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C.

2251-2253). Prior to 1977, only six states had provisions specifically

prohibiting the use of minors in obscene materials or performances. See Child

Pornography and Sex Rings, supra note 28, at 8. Now, all fifty states have child

pornography laws. See 720 Ill. Comp. Stat. Ann. 5/11-20.1 (West 1994 & Supp.

1998) (listing statutes of forty-seven states); see also Juliann

Whetsell-Mitchell, Rape of the Innocent 208 (1995) (noting that prior to 1977,

most states did not have laws regulating the production and distribution of

child pornography). For the three states not listed in the Illinois statute, see

N.Y. Penal Law 263.00-.25 (McKinney 2000); S.C. Code Ann. 16-15-405 (2000); Vt.

Stat. Ann. tit. 18, 2827 (2000).

n155. 413 U.S. at 15.

n156. Pub. L. No. 95-225, 18 U.S.C. 2252(b).

n157. See Annemarie J. Mazzone, Comment, United States v. Knox: Protecting

Children from Sexual Exploitation Through the Federal Child Pornography Laws, 5

Fordham Intell. Prop. Media & Ent. L.J. 167, 174-79 (1994) (discussing

congressional debates on whether it could ban non-obscene child pornography).

n158. 458 U.S. 747 (1982).

n159. The Court's exclusion of certain categories of expression from

constitutional expression was most famously articulated in Chaplinsky v. New

Hampshire, 315 U.S. 568, 571-72 (1942) (explaining limitations on free speech

which are constitutional). Justice Scalia's opinion in R.A.V. v. St. Paul, 505

U.S. 377 (1992) suggested a somewhat surprising twist on how to think about

categories excluded from the First Amendment. He called it a fiction to think

that certain categories are completely banished from constitutional protection.

His opinion established limits on "underinclusive" viewpoint-based regulations

of expression even when that expression existed wholly within an unprotected

category - in the case of R.A.V., the category of fighting words. Id. at 387.

n160. The materials at issue in Ferber had been found not obscene by the jury,

which was instructed to consider obscenity as well as child pornography charges

against the defendant. 458 U.S. at 752. Thus the issue for the Court was sharply

defined.

n161. Pub. L. No. 98-292, 98 Stat. 204 (1984) (codified as amended at 18 U.S.C.

2251-2254, 2256, 2516).

n162. Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204. The 1984

Act made other significant changes, such as increasing the maximum fines

tenfold, and removing the requirement that the transmission or receipt of child

pornography be done for profit, thereby targeting the growing non-commercial

cottage industry. Fines increased from $ 10,000 to $ 100,000 for a first

offense. 18 U.S.C. 2251. In addition, the law clarified that purely textual

pornography did not fall within the scope of the statute; the language

substituted "visual depiction" for "visual or print medium," which could be

interpreted to include text:

No reason for coverage of non-visual depictions was found in the legislative

history of the Act, and no need for such coverage has been identified in the 6

years of implementation of the Act. Rather than write in an obscenity

requirement for print material, it seems more approprite [sic] to simply limit

coverage to visual material.

H.R. Rep. No. 98-536, at 3 (1983). The law also added sections dealing with

civil and criminal forfeiture. 18 U.S.C. 2253-2254.

n163. H.R. Rep. No. 98-536, at 2 (1983).

n164. H.R. Rep. No. 99-910, at 5 (1986). In 1986, Congress again amended the law

to create two new offenses involving advertising. Child Sexual Abuse and

Pornography Act of 1986, Pub. L. No. 99-628, 100 Stat. 3510 (codified as amended

at 18 U.S.C. 2251, 2255-2256, 2421-2423 (1986)). The bill banned (1) advertising

child pornography for any type of exchange and (2) advertising seeking

participation in any sexually explicit conduct for the purpose of creating child

pornography. It also clarified that "visual depiction" included undeveloped film

and videotape, thereby codifying a decision in which the Ninth Circuit rejected

a defendant's argument that undeveloped film was not a visual depiction. Id. at

4, 100 Stat. 3511; United States v. Smith, 795 F.2d 841, 846-47 (9th Cir. 1986).

In 1988, Congress specifically outlawed the transmission of child pornography

images by computer. Pub. L. No. 100-690, sec. 7511(b), 102 Stat. 4485 (as

amended 18 U.S.C. 2252 (1988)). The 1988 Act also imposes extensive

record-keeping requirements for producers of any visual depiction of sexually

explicit conduct that was produced by materials mailed or shipped in interstate

commerce. Id. 7513(a), 102 Stat. at 4487. Producers of such material were

required to keep elaborate records about names and ages of performers and to

provide such information to authorities upon request. 18 U.S.C. 2257(a)-(c). The

Act was found unconstitutional because the requirements were not narrowly

tailored and "put as much, if not more, of a burden on reputable producers of

adult images than on the child pornography industry." Am. Library Ass'n v.

Thornburgh, 713 F. Supp. 469, 479 (D.D.C. 1989). The court also found that the

law's presumption that the performers were underage if the records were

unavailable or incomplete violated due process. Id. at 480-81. Congress amended

the Act to address concerns raised by the court. Child Protection Restoration

and Penalties Enhancement Act of 1990, Pub. L. No. 101-647, 311, 104 Stat. 4789,

4816 (codified at 18 U.S.C. 2257(d)-(e)). The government's appeal from the

District Court's decision was dismissed in part as moot because of the changes.

See Am. Library Ass'n v. Barr, 956 F.2d 1178, 1186-87 (D.C. Cir. 1992). On

remand, the changes were again challenged and found to be unconstitutional, Am.

Library Ass'n v. Barr, 794 F. Supp. 412, 417-20 (D.D.C. 1992), but the Court of

Appeals reversed and determined that most of the provisions were constitutional.

Am. Library Ass'n v. Reno, 33 F.3d 78, 88-94 (D.C. Cir. 1994). The Court of

Appeals did find that the requirement that records be kept indefinitely was

unconstitutional and suggested a five-year limit. Id. at 91. The court also

found that photo developers are not "producers" of sexually explicit material

and therefore not subject to the record-keeping requirements. Id. at 93.

Congress amended the statute again in 1996 to change the definition. See infra

notes 196-200 and accompanying text. Congress also dispensed with its

requirement that prosecutions be for possession of "three or more items"

containing child pornography. Protection of Children from Sexual Predators Act

of 1998, Pub. L. No. 105-314, 203(b)(1), 112 Stat. 2978 (codified as amended at

18 U.S.C. 2252A (1994 & Supp. IV 1998)). The new law permits prosecution for

possession of a single image. Id.