101 Colum. L. Rev. 209, *
Copyright (c) 2001 The Columbia Law Review
Columbia Law Review
This article originally appeared at 101 Colum. L. Rev. 209 (2001). Reprinted by permission.
ARTICLE: THE PERVERSE LAW OF CHILD PORNOGRAPHY
* 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
[*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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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."
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
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
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.
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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.
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
[*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
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.
"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.
n1. Quoted in Sandor Ferenczi, First Contributions to Psycho-Analysis 254
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,
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
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
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
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
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.
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.
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
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
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
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
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
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
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
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,
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.
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
n96. See Pub. L. 105-314, tit. I, 101(a), 112 Stat. 2974, 2975 (codified at 18
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
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
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
n117. The Supreme Court, 1981 Term, 96 Harv. L. Rev. 62, 141 n.2 (1982).
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.
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
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
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
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.
n165. Justice Brennan chose this term to describe the majority's motivations in
Osborne v. Ohio, 495 U.S. 103, 143 (1990) (Brennan, J., dissenting).
n166. New York v. Ferber, 458 U.S. 747, 751 (1982) (quoting N.Y. Penal Law
263.00(1), 263.00(3), 263.00(4) (McKinney 1980)). Current federal law has
codified the definition as follows:
(2) "sexually explicit conduct" means actual or simulated - (A) sexual
intercourse, including genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same or opposite sex; (B) bestiality;
(C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious
exhibition of the genitals or pubic area of any person.
18 U.S.C. 2256(2)(A)-(E) (1994).
n167. Child Protection Act of 1984, Pub. L. No. 98-292, 5, 98 Stat. 204, 205
(codified as amended at 18 U.S.C. 2253 (1994)) (redesignated 2255 and
subsequently renamed 2256). This was supposedly in order to emphasize the
distinction between child pornography law and obscenity law, with which the term
"lewd" is often associated. See United States v. Dost, 636 F. Supp. 828, 830-32
(S.D. Cal. 1986) (discussing the Act).
n168. Throughout, I use terms like "innocuous" or "innocent" to refer to
pictures that are not child pornography. But one point of this Article is to
expose and then analyze the very difficulty of distinguishing the innocent and
innocuous photograph from "real" child pornography. These terms should therefore
be read as placeholders for contested meaning. See Amy Adler, What's Left?: Hate
Speech, Pornography, and the Problem for Artistic Expression, 84 Cal. L. Rev.
1499, 1506-08 (1996) [hereinafter Adler, What's Left]. The Supreme Court has
used these terms to distinguish protected depictions of children from child
pornography. See, e.g., Osborne v. Ohio, 495 U.S. 103, 113-14 (1990) (discussing
the distinction between child pornography and "innocuous" photographs).
n169. See 491 U.S. 576, 588-90 (1989) (Scalia and Blackmun, J.J., concurring).
This move, like the move to criminalize a range of depictions of nudity in the
Osborne case, described infra notes 191-195 and accompanying text, is
particularly striking, given that the Court has repeatedly noted in its speech
cases that depictions of nudity are protected under the First Amendment:
"'Nudity alone' does not place otherwise protected material outside the mantle
of the First Amendment." Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66
(1981) (quoting Jenkins v. Georgia, 418 U.S. 153, 161 (1974)). This is
supposedly so even in child pornography law. Indeed, the Ferber opinion repeated
the Court's mantra that "nudity[ ] without more is protected expression."
Ferber, 458 U.S. at 765 n.18 (citing Erznoznik v. City of Jacksonville, 422 U.S.
205, 213 (1975)); see also United States v. X-Citement Video, Inc., 513 U.S. 64,
84 (1994) (Scalia, J., dissenting) (distinguishing nudity from "sexually
explicit conduct"); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33 (1975)
(invalidating ordinance that would prohibit any female from appearing in any
public place with uncovered breasts); Erznoznik v. City of Jacksonville, 422
U.S. 205, 212-14 (1975) (striking down ban on nudity in drive-in movies even
when nudity was visible to passers-by).
n170. 495 U.S. at 113 (quoting State v. Young, 525 N.E.2d 1363, 1368 (Ohio
n171. Id. at 138 (Brennan, J., dissenting).
n172. 32 F.3d 733, 747 (3d Cir. 1994); accord United States v. Horn, 187 F.3d
781, 790 (8th Cir. 1999) (finding that "a reasonable jury could conclude that
the exhibition of pubic area was lascivious" in "beach scenes [of] girls wearing
n173. Knox, 32 F.3d at 737.
n174. Id. at 737. The case provoked significant political controversy. For a
discussion of the "torrent of political outrage," see Eric M. Freedman, A Lot
More Comes into Focus When You Remove the Lens Cap, 81 Iowa L. Rev. 884, 929-30
(1996); see also Lawrence A. Stanley, The Child Porn Storm, Wash. Post, Jan. 30,
1994, at C3 (op-ed piece by Knox's attorney decrying the case as "a clear
injustice, driven by political imperatives"); Pierre Thomas, Reno Takes Tougher
Stance on Child Pornography, Wash. Post, Nov. 11, 1994, at A3 (describing Reno's
submission of brief at the urging of President Clinton to take a tougher stance
in response to a unanimous Senate resolution).
n175. E.g., Frank J. Murray, Appeal Rejected in Child Porn Case: Sentence Upheld
for Clothed Poses, Wash. Times, Jan. 18, 1995, at A1 (reporting on the Supreme
Court's denial of certiorari in Knox).
n176. United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom.
United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987).
n177. Dost, 636 F. Supp. at 832. The test does not require that all factors be
met to find that a depiction is a lascivious exhibition; nor are the factors
meant to be exhaustive. Id. In spite of the universal adherence to the Dost
test, a closer examination of the cases reveals troubling uncertainty about the
proper meaning of "lascivious." Part IV, infra, will discuss some of the
problems with the test.
n178. Keith Russell, Anti-Porn Group Wages Moral Battle, Nashville Banner, Dec.
29, 1997, at A1.
n179. Philip Hager, U.S. Grand Jury Refuses to Indict Photographer, L.A. Times,
Sept. 17, 1991, at A3.
n180. Lois Romano, Seizure of 1979 Art Film Draws Fire, Wash. Post, June 30,
1997, at A1. A federal judge ruled that the film did not violate Oklahoma's
statute. See Oklahoma ex rel. Macy v. Blockbuster Videos Inc., 27 Media L. Rep.
1248 (W.D. Okla. 1998); see also Video Software Dealers Ass'n v. City of
Oklahoma City, 6 F. Supp. 2d 1292 (W.D. Okla. 1997) (ordering that confiscated
videotapes be returned).
n181. Celestine Bohlen, A New 'Lolita' Stalls in Europe, N.Y. Times, Sept. 23,
1997, at E1.
n182. Kate Coscarelli & Jeffery C. Mays, Photos of Undressed Kids Get
Grandmother Arrested, Newark Star-Ledger, Feb. 5, 2000, at 1.
n183. See, e.g., Editorial, Suitable for Framing? Lorain Mom's Nude Pictures of
Her 8-Year-Old Daughter Raise Questions About Parenting and Prosecution, The
Plain Dealer, Oct. 16, 1999, at 8B (mother arrested for nude picture of daughter
n184. U.S v. Matthews, 11 F. Supp. 2d. 656 (D. Md. 1998), aff'd 209 F. 3d 338
(4th Cir. 2000). Given this climate, in researching this Article, I have done
the only sensible thing: I have not deliberately sought out any "real" child
pornography. Of course, given the looseness of the definition we may all have
seen "child pornography," just by watching movies, music videos, or TV. This
question is taken up in Part III.C, which addresses the mainstream availability
of "soft core" child porn. There I also discuss works of art depicting child
nudity that may lack protection under current law.
n185. New York v. Ferber, 458 U.S. 747, 756-64 (1982). The five rationales set
out in Ferber were as follows:
1. The state has a "'compelling'" interest in "'safeguarding the physical and
psychological well-being of a minor.'" Id. at 756-57 (quoting Globe Newspaper
Co. v. Superior Ct., 457 U.S. 596, 607 (1982)).
2. Child pornography is "intrinsically related to the sexual abuse of children
in at least two ways. First, the materials produced are a permanent record of
the children's participation and the harm to the child is exacerbated by their
circulation. Second, the distribution network for child pornography must be
closed" in order to control the production of child pornography. 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 use. Id. at 760.
3. "The advertising and selling of child pornography provide an economic motive
for and are thus an integral part of the production" of child pornography. Id.
4. The possibility that there would be any material of value that would be
prohibited under the category of child pornography is "exceedingly modest, if
not de minimis." Id. at 762.
5. Banning full categories of speech is an accepted approach in First Amendment
law and is therefore appropriate in this instance. Id. at 763-64.
n186. The first three rationales address this central harm. The fourth rationale
goes to the assumption that the category of speech in question is "low value";
banning it therefore presents little First Amendment concern. See Young v.
American Mini Theatres, Inc., 427 U.S. 50, 66-73 (1976) (outlining hierarchy of
valued speech). The fifth rationale recognizes the Court's precedent of having
banned whole categories of speech before.
n187. The abuse of an actual child is "the distinguishing characteristic of
child pornography." Attorney General's Report, supra note 28, at 405.
n188. Miller v. California, 413 U.S. 15, 24 (1973) (establishing exception in
obscenity law for works that possess such value). Although the Court has never
entertained a child pornography case in which serious value was raised as a
defense, the Court's dicta in Ferber rejected the idea of an exception for
value. Ferber held that the lack of an exception for serious value did not
render the law so overbroad that it failed under the doctrine of "substantial
overbreadth." Ferber, 458 U.S. at 766-74. The concurring opinions in Ferber
suggest some discord on the question of serious value among the members of the
Court at the time of the 9-0 decision. For example, Justice O'Connor wrote to
emphasize that artistic value was irrelevant to the harm of child abuse that
child pornography law sought to eradicate. "For example, a 12-year-old child
photographed while masturbating surely suffers the same psychological harm
whether the community labels the photograph 'edifying' or 'tasteless.' The
audience's appreciation of the depiction is simply irrelevant to New York's
asserted interest in protecting children from psychological, emotional, and
mental harm." Id. at 774-75 (O'Connor, J., concurring). In contrast, Justice
Brennan assumed that serious artistic value would be a valid defense in a case
if it were raised. He wrote that harm to a child and value of a depiction bear
an inverse relationship to one another: "The Court's assumption of harm to the
child resulting from the 'permanent record' and 'circulation' of the child's
'participation' ... lacks much of its force where the depiction is a serious
contribution to art or science." Id. at 776 (Brennan, J., concurring in the
judgment) (citations omitted). In Hilton, the First Circuit indicated that
serious value would be a defense under the Child Pornography Prevention Act of
1996 when the prosecution was based on virtual child pornography that did not
involve a real or recognizable child. United States v. Hilton, 167 F.3d 61, 71
(1st Cir. 1999).
In any event, the Court's unwillingness to except works of serious artistic
value from the definition of child pornography, and the assumption that it is
unlikely that any works that might be child pornography might also possess even
de minimus social value, are simply contrary to contemporary artistic practice.
For a discussion of the importance of child nudity in art, see infra notes
n189. This rationale of child abuse is also key to the Court's and Congress's
assumption that child pornography can be only images rather than text. The
supposition is that text does not record actual abuse, but rather can spring
from the imagination.
n190. See supra note 188 (discussing Justice O'Connor's adherence to the idea
that value is irrelevant to harm).
n191. 495 U.S. 103, 111 (1990).
n192. Stanley v. Georgia, 394 U.S. 557, 568 (1969) (holding that the government
cannot prohibit mere possession of obscene material).
n193. Osborne, 495 U.S. at 109 ("The State does not rely on a paternalistic
interest in regulating Osborne's mind. Rather, Ohio has enacted [its law
prohibiting possession of child pornography] in order to protect the victims of
child pornography ... .").
n194. Id. at 111 ("Evidence suggests that pedophiles use child pornography to
seduce other children into sexual activity.") (citing Attorney General's Report,
supra note 28, at 649).
n195. The Court did not state that this rationale could stand alone in
justifying the prohibition of child pornography. Rather, the Court added this
rationale to a list of others. See id. ("Other interests also support the Ohio
law."). For a discussion of the constitutional problems raised by this
rationale, see Adler, Inverting the First Amendment, supra note 6.
n196. Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, 121
(codified in scattered sections of 18 U.S.C.).
n197. "'Child pornography' means any visual depiction ... of sexually explicit
conduct, where ... (B) such visual depiction is, or appears to be, of a minor
engaging in sexually explicit conduct; [or] (C) such visual depiction has been
created, adapted, or modified to appear that an identifiable minor is engaging
in sexually explicit conduct ... ." 18 U.S.C. 2256(8)(B)-(C) (Supp. IV 1998).
n198. Child Pornography Prevention Act of 1996 121(10)(B).
n200. United States v. Hilton, 167 F.3d 61, 65 (1st Cir. 1999); United States v.
Acheson, 195 F.3d 645, 648 (11th Cir. 1999). But see Free Speech Coalition v.
Reno, 198 F.3d 1083, 1086 (9th Cir. 1999), cert. granted, Ashcroft v. Free
Speech Coalition, 121 S.Ct 876 (2001). The Ninth Circuit found that the law
"criminalizes disavowed impulses of the mind" and "evil ideas," and therefore
violated the First Amendment. Id. at 1094.
n201. Jenkins, supra note 10, at 146-46 (questioning the statistics used in the
media to support the claim that child pornography was a growing crisis).
n202. See, e.g., Deborah Cameron & Elizabeth Frazer, The Lust to Kill 57-58
(1987) (quoting Simone de Beauvoir, Force of Circumstance 255 (R. Howard trans.
1968)) (describing "transcendent" feeling of deviant for living above the rules
n203. I should qualify any reference to the "nature of sexuality" by cautioning
that I mean only the nature of sexuality as we understand it. As will be evident
in Part IV, it is essential to my argument that sexuality is socially
n204. Roger Shattuck, Forbidden Knowledge: From Prometheus to Pornography 329
(1996). I have previously argued that the category "art" is defined by its
transgressive quality. See Amy M. Adler, Note, Post-Modern Art and the Death of
Obscenity Law, 99 Yale L.J. 1359, 1362-65, 1378 (1990).
n205. To Bataille, a transgression "suspends a taboo without suppressing it."
Georges Bataille, Erotism: Death & Sensuality 36 (Mary Dalwood trans., 1986)
(1957). Rather, "transgression does not deny the taboo but transcends it and
completes it." Id. at 63. See also Mark C. Taylor, Desire of Law, Law of Desire,
11 Cardozo L. Rev. 1269, 1269 (1990) (noting that law and desire exist in
dialectical relationship to each other).
n206. Michel Foucault, A Preface to Transgression in Michel Foucault, Language,
Counter-Memory, Practice: Selected Essays and Interviews 29, 34 (Donald
Bouchard, ed. 1977) (explaining Bataille) [hereinafter Foucault, Preface to
Transgression]. Foucault continues:
Perhaps [transgression] is like a flash of lightning in the night which, from
the beginning of time, gives a dense and black intensity to the night it denies,
which lights up the night from the inside, from top to bottom, and yet owes to
the dark the stark clarity of its manifestation, its harrowing and poised
singularity; the flash loses itself in this space it marks with its sovereignty
and becomes silent now that it has given a name to obscurity.
Id. at 35.
n207. Shattuck writes that "lust for forbidden knowledge" is at the root of
human curiosity: "Ancient and modern prohibitions on particular areas of
knowledge sometimes stimulate human curiosity more than they dampen it."
Shattuck, supra note 204, at 330.
n208. Foucault, Preface to Transgression, supra note 206, at 35.
n209. Geoffrey Chaucer, The Canterbury Tales, in Chaucer's Poetry: An Anthology
for the Modern Reader 207 (E.T. Donaldson ed., 1975) (The Wife of Bath's
Prologue, line 525).
n210. Sigmund Freud, Taboo and the Ambivalence of Emotions, in Totem and Taboo
802 (A.A. Brill trans., Modern Library 1938) (1912). The desire to transgress a
taboo resides in the unconscious; in most cases, the conscious fear of violation
outweighs the unconscious desire. Id. at 799. Yet, the desire to transgress
remains embedded in the taboo. Id.
I use Freud's work here in spite of the criticism leveled against him in the
context of child sexual abuse as described in Part I. I should also note that my
use of Foucault later in this Article further complicates the question of
Freud's validity here, since, as I explain in Part IV, Foucault raised troubling
questions about Freud's work on sexuality. I grapple with these contradictions
later in the Article when I consider the relationship and ultimate harmony
between the two readings offered in Parts III and IV.
n211. Id. at 828.
n212. Part IV will address this question from another perspective.
n213. Sigmund Freud, The Most Prevalent Form of Degradation in Everyday Life 212
(1912) in 4 Collected Papers 203 (Joan Riviere trans., Basic Books 1959)
[hereinafter Freud, Degradation].
n214. Judith Butler, Excitable Speech: A Politics of the Performative 175 n.19
n215. See Freud's discussion of the dynamic relationship between conscience and
renunciation in Sigmund Freud, Civilization and its Discontents 84 (1961).
n216. Freud, Degradation, supra note 213, at 213-14.
n217. This view is consistent with Freud's general theory of repression, by
which desires are driven into the unconscious but never eliminated. Sigmund
Freud, 5 The Interpretation of Dreams 577 (James Strachey trans., 1913) (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 Psychoanalysis 398 (Donald Nicholson Smith, trans., 1973) (1967).
n218. See Butler, supra note 214, at 117.
n220. Scheper-Hughes & Stein, supra note 49, at 186. She also writes: "The
'child saver' investigators are themselves suspect of playing out a child
molestation fantasy." Id. at 189. The "child is being beaten" reference in the
first quotation is to Freud, who remarked, in a somewhat similar vein: "It is
surprising how often people who seek analytic treatment for hysteria or an
obsessional neurosis confess to having indulged in the phantasy: 'A child is
being beaten.'" Sigmund Freud, A Child is Being Beaten: A Contribution to the
Study of the Origin of Sexual Perversions 179 (James Strachey, trans. 1995)
n221. Bataille, supra note 205, at 36. Drawing on Hegel, Bataille examines the
dialectic of transgression and taboo. To Bataille, a transgression "suspends a
taboo without suppressing it." Id. Rather, "transgression does not deny the
taboo but transcends it and completes it." Id. at 63; see also Jessica Benjamin,
The Bonds of Love: Psychoanalysis, Feminism, and the Problem of Domination 62-68
(1988) (discussing Bataille and Hegel); David Cole, Playing by Pornography's
Rules: The Regulation of Sexual Expression, 143 U. Pa. L. Rev. 111, 116 (1994)
("Sexual expression ... subverts every taboo by making it a fetish. The
forbidden is simultaneously eroticized.").
n222. Jean Laplanche & Jean Bertrand Pontalis, Fantasy and the Origins of
Sexuality, in Formations of Fantasy 11 (Victor Burgin et al. eds., 1986).
n223. Freud, Degradation, supra note 213, at 213.
n224. Id. at 214. For an interesting critique of this passage, see William Ian
Miller, The Anatomy of Disgust 124-27 (1997).
n225. Freud theorized that men and women reacted differently in this respect.
Men often chose to grapple with the obstacle by splitting their desire between
an "appropriate" wife, who recalled the man's mother or sisters, and a mistress
whom the man could view as degraded and therefore outside the incest taboo.
(Freud's analysis dwells on class distinctions here.) Freud reasoned that it was
often "not possible for [women] ... to undo the connection thus formed in their
minds between sensual activities and something forbidden ... ." Freud,
Degradation, supra note 213, at 211-212.
n226. Suein L. Hwang, Drag Queens: Paula Puffs and Her Fans Watch Enraptured -
'Smoxploitation' Films Signal That Smoking is Becoming a Fetish Among Many, Wall
St. J., Jan. 31, 1996, at A1.
n227. Id. As the editor of a pornographic magazine that has turned to smoking
pictures argued, "anytime something becomes ... taboo, it will be eroticized."
Id. (quoting Dian Hanson, editor of Leg Show, a "popular fetish magazine").
n228. Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law
n229. Id. at 151. MacKinnon assumes that her ordinance eschews one of the
pitfalls of obscenity law - state power enforcement - by making pornography a
tort, subject to individual women's civil lawsuits, rather than a crime. Id. at
198-205. Obviously, the state is still involved in the tort system, a problem
that MacKinnon avoids completely.
n230. Kai T. Erikson, Wayward Puritans: A Study in the Sociology of Deviance
(1966). Erikson's work points to the social shaping of deviant categories and of
n231. Id. at 22 (emphasis added). Another work that emphasizes the necessity of
transgression to the social order is Rene Girard, Violence and the Sacred 106
(Patrick Gregory trans., 1972) (discussing royal incest rituals). Girard
contends that transgression serves a ritualistic, normative function which
reaffirms cultural stability. See id. at 257. See also Stephen Greenblatt,
Renaissance Self-Fashioning: From More to Shakespeare (1984). Greenblatt
contends that the formation of individual identity requires the existence of an
"alien" to attack. He writes: "Self-fashioning is achieved in relation to
something perceived as alien, strange, or hostile. This threatening Other -
heretic, savage, witch, adulteress, traitor, Antichrist - must be discovered or
invented in order to be attacked and destroyed." Id. at 9. For a classic
exploration of related themes, see Herbert Marcuse, Eros and Civilization 49-51
n232. Erikson, supra note 230, at 14.
n233. Erikson, supra note 230, at 20. Erikson's work focuses on the necessity of
deviance in the formation of group identity; he views deviance as part of
community's "overall division of labor." Id. at 19.
n234. Id. at 17, 22.
n235. Id. at 23 (quoting George Edward Ellis, The Puritan Commonwealth, in The
Memorial History of Boston 166 (Justin Winsor ed., 1880)) (describing early
Puritan crime). Erikson elaborates the point, noting that the deviance came in
the exact reflected image "of those values which stood at the core of the
Puritan consciousness." Erikson, supra note 230, at 23.
n236. See 141 Cong. Rec. S13, 540, S13, 542 (1995) (statement of Sen. Hatch).
See supra notes 196-200 and accompanying text for a discussion of the provisions
of the Act.
n237. See Philip Elmer-DeWitt, On a Screen Near You: Cyberporn, Time, July 3,
1995, at 38.
n238. See Associated Press, FBI Ready For Raid On Computer Child Porn, Plain
Dealer (Clev.), July 6, 1995, at 5B, available at 1995 WL 7118712.
n239. Here is the text of one of the commercials as quoted in Calvin's
Provocative Portfolio, Advertising Age, Sept. 4, 1995, at 34. The scene depicts
an awkward good looking pubescent boy in a T-shirt and jeans. He stands in a
cheaply wood paneled basement and addresses an off-camera male voice.
Off-camera voice [OCV]: You got a real nice look, how old are you?
Model: Twenty-one [clearly lying].
OCV: What's your name?
OCV: Why don't you stand up ... are you strong?
Model: I'd like to think so.
OCV: You think you could rip that shirt off of ya?
Model rips off T-shirt
OCV: That's a nice body ... do you work out?
Model: Uh huh.
OCV: Yeah, I can tell.
n240. Deborah Voorhees, Ad Watchdog Has an Eye for Howlers, Dallas Morning News,
Feb. 18, 2000, at 53, available at 2000 WL 14655897 (quoting Bob Garfield,
advertising critic for Advertising Age).
n241. The FBI reportedly investigated the possibility of issuing criminal child
pornography charges against Klein, but never went forward. See Paula Span, Sexy
Calvin Klein Ads Spark FBI Inquiry, Wash. Post, Sept. 9, 1995, at A1. The fact
that the models were clothed in the ads presumably would be no bar to
prosecution under the Knox court's interpretation of the federal anti-child
pornography statute. It was unclear from press reports whether any of the very
young looking models were actually minors.
n242. Heavy Hitters Pull No Punches, Advertising Age, Dec. 18, 1995, at 16
(stating that the "hype" over controversial ads convinced teens that the jeans
must be cool, and product flew off the racks. "Mr. Klein expects jean sales will
nearly double this year").
n243. For work establishing that transgression is the basis of youth culture,
see Dick Hebdige, Subculture: The Meaning of Style 17-19 (1991).
n244. Valerie Walkerdine, Popular Culture and the Eroticization of Little Girls,
in A Children's Culture Reader, supra note 49, at 254; see also Sarah Boxer,
'Lolita' Turns 40, Still Arguing for a Right to Exist, N.Y. Times, Aug. 1, 1998,
at B9 ("every man, woman, and child among us has become a vile, pustulating
pedophile," quoting writer Damon Treat, who wrote about "the new Lolitocracy").
n245. See, e.g., Britney's Wild Ride, People, Feb. 14, 2000, at 98 ("Your
12-year-old daughter's favorite popster is a pouty teen temptress who sings 'Hit
Me Baby One More Time.'"); Nicholas Barber, Hit On Me Baby One More Time (But
Sex Is Out Of The Question), The Guardian, Aug. 13, 2000, at 8 (describing the
"soft porn fantasy" Rolling Stone photo shoot that "pictured Spears in her
underwear, toy teletubby under one arm in a pink bedroom" being sold as a
n246. Richard Goldstein, Nymph Mania, Village Voice, June 17, 1997, at 48.
n247. Andrew Wallenstein, Pretty Girl, Ugly Media: Pageant 'Issue' a Flimsy
Excuse for Exploiting Model's Slaying, Ariz. Republic, Feb. 5, 1997, at B5
(quoting Dan Rather).
n248. Some of the prominent contemporary artists whose work depicts child nudity
include Jock Sturges, Larry Clark, Wendy Ewald, Henry Darger, and Jake and Dinos
Chapman (who were among the notorious "Sensation" artists).
n249. Manet's Olympia is in turn based on Titian's Venus of Urbino, from which
the Mann photograph takes its title.
n250. See Jim Lewis, Larry Clark: What Is This?, Parkett No. 32, June, 1992, at
n251. See supra notes 188-190 and accompanying text, explaining lack of
protection for works that may contain artistic value.
n252. See Kids (Miramax 1995) (chronicling sexual activities of young teenagers
in New York City).
n253. Walkerdine, supra note 244, at 257.
n254. Marina Warner, Six Myths of Our Time 59 (1994) (also noting that in
current pornography, "children have in many ways replaced women"); see also
Higonnet, supra note 5, at 10-11 (asserting that "more and more sexual meanings
are now being ascribed to photographs of children both past and present ... .").
n255. Emily Driver, Introduction, in Child Sexual Abuse 23 (Emily Driver &
Audrey Droisen eds., 1989); see also Bell, supra note 8, at 78 (documenting and
evaluating feminist arguments on this point). Feminists argue that it is not
just the sexualizing of children that is at work; the valorization of women's
youth and of female childlike behavior also reflects this perversity. Id.
n256. Bell, supra note 8, at 82.
n257. As I discuss in Part I.B.3, supra, the statistics are hard to interpret on
n258. New York v. Ferber, 458 U.S. 747, 760 (1982).
n259. Alexander Pope, An Essay on Criticism, in Alexander Pope 17, 34 (Pat
Rogers ed. 1993).
n260. I mean to use the word not in the loose slang meaning it has acquired
(i.e., to "take apart"), but in a Derridean sense.
n261. United States v. Villard, 700 F. Supp. 803, 812 (D.N.J. 1988).
n262. Child Pornography Prevention Act of 1996, 18 U.S.C. 2251 (Congressional
Findings, at (11)(A)) (Supp. IV 1998).
n263. I do not mean to suggest that children are not sexual prior to our gaze.
Rather, I mean that our gaze has now shaped and changed their sexuality.
n264. Lenore Skenazy, Calvin's Not-So-Model Behavior, N.Y. Daily News, Mar. 1,
1999, at 29 (quoting Calvin Klein).
n265. Kirsten Davis & Ed Robinson, Brief Stay for Calvin Kiddie Ads, N.Y. Post,
Feb. 18, 1999, at 5. Mayor Rudolph Giuliani said that the ads "did not look like
the kind of thing you'd want to do with young children." Matt Reed, Designer
Briefs on Kids?, Cincinnati Enquirer, Feb. 23, 1999, at C1 (quoting Mayor
n266. Reed, supra note 265, at C1.
n268. Calvin Klein Axes Ads for New Kids Underwear, Advertising Age, Feb. 22,
1999, at 64.
n269. Associated Press, Criticized Klein Ad is Pulled, Feb. 18, 1999, available
at 1999 WL 12931035 (quoting Bernard Yenelouis of the International Center for
Photography in New York).
n271. Davis & Robinson, supra note 265.
n272. After Outcry, Calvin Klein Ends Children's Underwear Ads, Chi. Trib., Feb.
18, 1999, at 9.
n273. See generally John Berger, Ways of Seeing 1-33 (1972). Berger presents the
changing conventions of perception and representation. He writes: "Today we see
the art of the past as nobody saw it before. We actually perceive it in a
different way." Id. at 16. For an international perspective, see Richard Marusa,
American Prudery, and Its Opposite, N.Y. Times, Feb. 19, 2000, at A15 (arguing
that an advertising image which in Europe is seen as "innocent and natural"
would likely "be denounced by some in America as child pornography").
n274. Brief of National Law Center for Children and Families et al. as Amici
Curiae in Support of the Respondent at 1183, Knox v. United States, vacated as
moot, 510 U.S. 939 (1993) (No. 92-1183) (citations omitted). Amici argue at
another point that "it is crucial for the Court to understand that the
production, distribution, and receipt of child pornography are accomplished by
pedophiles. Because each of the persons involved view children as sexual
objects, they react much differently to videotapes such as [those in question]
than would a non-pedophile." Id.
n275. Knox v. United States, 32 F.3d 733, 747 (3d Cir. 1994).
n276. Id. In a recent case, the First Circuit rejected the government's rather
startling assertions that the setting of photographs of children on a beach was
sexually suggestive because "'many honeymoons are planned around beach
locations.'" United States v. Amirault, 173 F.3d 28, 33 (1st Cir. 1999).
n277. Brief of National Law Center for Children and Families et al., supra note
274, at 10.
n278. Cf. Kansas v. Hendricks, 521 U.S. 346, 360 n.3 (1997) (upholding civil
confinement of pedophiles as sexually violent predators and discussing lack of
"harmony" among psychiatrists about classification of pedophilia as a mental
Foucault's work calls into question the categorization of people according to
their sexual practices, and thus destabilizes the category of "pedophile." See,
e.g., Michel Foucault, The History of Sexuality: An Introduction, Vol. 1 42-43
(Robert Hurley trans., 1990) (1978) [hereinafter Foucault, History of Sexuality]
(discussing creation of "homosexuality" as a category).
n279. Of course, my discussion of "mainstream pedophilia" in Part III, supra,
questions the binary division, assumed in public discourse, between "pedophiles"
and "us." For a discussion of the ways in which "pedophilic" desire reflects
"mainstream" masculine desire, see Bell, supra note 8, at 158-59.
To desire someone younger than oneself, with less access to power than oneself,
is certainly not an abnormal desire. It is the predominant construction of
masculine desire in the contemporary form of heterosexuality. If therefore, one
wishes to question the division between adult and child sexuality, one must also
stress both the 'normality' of paedophilia and its gendered aspect.
n280. Paidika, Journal of Paedophilia (June 9, 1998), at
http://konpeito5.bekkoame. or.jp/ro/fresh/paidikaa.html (last visited June 9,
1998). Paidika describes itself as a "scholarly journal" that explores what it
terms "consensual adult-child sexual relations." Id.
n281. For example, the catalogue from which Knox ordered his videotapes
described one videotape, featuring girls in panties, as "so revealing it's
almost like seeing them naked (some say even better)." Knox, 32 F.3d at 138
(emphasis added). See also Hearings on S. 1237 Child Pornography Prevention Act
of 1995, supra note 64, at 21 ("Often, when we conduct searches in our
investigations, we find photographs of children who are not involved in sexual
activity, photographs taken by pedophiles for their own gratification.")
(testimony of Chief Postal Inspector Jeffrey Dupika); John Crewdson, By Silence
Betrayed: Sexual Abuse of Children in America 247 (1988) (a pedophile could
"look at the children's underwear section of a Sears catalogue and become
aroused") (quoting Rob Freeman-Longo, a researcher at Oregon State Hospital);
Warner, supra note 254, at 59 ("Lewis Carroll's friends were undisturbed by his
photographs of their children, while some pederasts today, it seems, are kept
very happy by [children's clothing] catalogues."). For other cases in which
defendants were arrested for material that seems to fall into this category,
see, e.g., Arizona v. Gates, 897 P.2d 1345, 1347 (1994) (material depicted
children in "normal situations and poses," in a "ballet costume, and in a dance
class" and in "department store underwear advertisements, National
Geographic-type articles, and medical textbooks").
n282. See Kincaid, Erotic Innocence, supra note 40, at 54-55. This suggests the
presence of the dialectic between taboo and transgression described in Part III,
supra. It also calls into question the role played by the rising insistence on
childhood innocence as described in Part IV.A, supra.
n283. Matthew Stadler, Stranger, March 20, 1997, at 15 (cited in Kincaid, Erotic
Innocence, supra note 40, at 115).
n284. 32 F.3d 733 (3d Cir. 1994).
n285. Id. at 737.
n287. For a discussion of the overbreadth doctrine in the context of child
pornography law, see Adler, Inverting the First Amendment, supra note 6.
n288. Attorney General's Report, supra note 28, at 407 n.71.
n290. United States v. Villard, 700 F. Supp. 803, 811 (D.N.J. 1988).
n291. 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom. United States v.
Wiegand, 812 F.2d 1239 (9th Cir. 1987). Dost has been adopted by the Third
Circuit in Knox, 32 F.3d at 747; the First Circuit in United States v. Amirault,
173 F.3d 28, 32 (1st Cir. 1999) (emphasizing that the Dost factors are "neither
comprehensive nor necessarily applicable in every situation"); the Fifth Circuit
in United States v. Rubio, 834 F.2d 442, 448 (5th Cir. 1987) (affirming use of
factors without specifically citing Dost); the Eighth Circuit in United States
v. Horn. 187 F.3d 781, 789 (8th Cir. 1999) ("we find helpful the six criteria
suggested" in Dost), and the Tenth Circuit in United States v. Wolf, 890 F.2d
241, 244-46 (10th Cir. 1989) ("We agree with the Ninth Circuit's interpretation
of the statutory language [in Dost]"). Numerous district courts have followed
Dost as have many state courts. See, e.g., Nebraska v. Saulsbury, 498 N.W.2d
338, 344 (Neb. 1993) (holding that factors set out in Dost are relevant under
Nebraska law). I have not found a single case in any jurisdiction in which a
court mentions the Dost factors and declines to follow them. In spite of the
universal adherence to the Dost test, a closer examination of the cases reveals
troubling uncertainty about the proper meaning of "lascivious." Part IV, infra,
describes some of the problems with the test.
n292. Dost, 636 F. Supp. at 832. The test does not require that all factors be
met to find that a depiction is a lascivious exhibition; nor are the factors
meant to be exhaustive. Id.
n293. Wiegand, 812 F.2d at 1244; Knox, 32 F.3d at 747 (approving the Wiegand
court's interpretation of Dost factors); see also United States v. Mr. A., 756
F. Supp. 326, 328-29 (E.D. Mich. 1991) (applying Dost factors and stating that
the motive of photographer and intended response of viewer are relevant to
determination of lasciviousness).
I leave aside here the daunting interpretive difficulty of ascertaining exactly
how a pedophile might see (not to mention the difficulty of ascertaining the
viewpoint of a "necrophilic pedophile," as the prosecution urged in one case).
Foster v. Virginia, No. 0369-87-2, 1989 WL 641956, at 4 (Va. Ct. App. Nov. 21,
n294. See supra notes 276-283 and accompanying text (discussing interpretation
n295. Although it is outside the scope of this Article, this perspective raises
a troubling interpretive problem. It has contributed to what is, in my view, a
confused body of case law. How are we to determine the intended effect of a
picture? Although courts agree that this is the question to be asked, they have
taken two different approaches to the inquiry. On the one hand, most courts that
consider the question state that the intended effect of a picture is evident in
the picture itself; the reaction of the defendant who possessed the picture is
irrelevant. On the other hand, there are courts that rely on evidence of the
actual response of the defendant to a picture as evidence of its intended
effect. Some courts purport to follow the first standard, but in actual practice
follow the second. The leading case on the idea that child pornography inheres
in a photo is United States v. Villard, 885 F.2d 117 (3d Cir. 1989). There the
court held: "'Child pornography is not created when the pedophile derives sexual
enjoyment from an otherwise innocent photo.' ... We must, therefore, look at the
photograph, rather than the viewer." Id. at 125 (quoting United States v.
Villard, 700 F. Supp. 803, 812 (D.N.J. 1988)). The First Circuit recently
followed Villard in Amirault, 173 F.3d at 33 (finding photograph of young naked
girl on beach did not contain a "lascivious exhibition of the genitals"); see
also People v. Lamborn, 708 N.E.2d 350, 355 (Ill. 1999) ("Whether defendant was
aroused by the photographs is irrelevant in determining whether the photographs
are lewd", and that inquiry must focus "on the photograph itself, not on the
effect that the photograph has on an individual viewer"); Faloona v. Hustler
Magazine, Inc., 607 F. Supp. 1341, 1344 & n.10 (N.D. Tex. 1985), aff'd 799 F.2d.
1000 (5th Cir. 1986) (holding that nude pictures of children do not constitute
child pornography merely because they were republished in a "raunchy" magazine).
This approach presents an appealing fantasy of stable pre-interpretive meaning.
It is, unfortunately, interpretively incoherent when applied to photos that do
not depict explicit sex acts. Although the comparison is exaggerated, to say
that lasciviousness inheres in pictures of children is a bit like saying that
the meaning of a Rorschach test inheres in the blots.
The second approach - looking at the actual effect of material on its viewer in
order to determine intended effect - is circular. Consider, for example, State
v. Dixon, No. 01C01-9802-CC-00085, 1998 WL 712344 (Tenn. Crim. App. Oct. 13,
1998), a Tennessee state court decision that follows this approach. The
defendant had secretly made a tape using a hidden camera of two little girls
taking a bath together. Presumably the content of the tape - though obviously
not the circumstances of its making - were innocent and everyday; it depicted
nothing more than two girls going through the routine of their bath, not knowing
that they had been spied upon or recorded. What the defendant did to take the
picture is repulsive. But putting aside his action in making the tape, is it
right to call the tape itself child pornography? The court answered yes. It
found that the tape depicted sexual conduct by children because it "was intended
to elicit a sexual response in the viewer." Id. at 2. It based its decision in
part on evidence that the "defendant viewed the videotape before engaging in
sexual relations with [his adult girlfriend]." Id. Under this standard, an
everyday image can be child pornography because a pedophile finds it sexually
stimulating. This is unfortunately the standard to which many courts covertly
n296. Wiegand, 812 F.2d at 1244 (emphasis added).
n297. Id. (emphasis added). In the Knox case, Solicitor General Drew Days had
argued for a different standard, contending that the term "lascivious" must
describe the child who is "lasciviously engaging in sexual conduct (as
distinguished from lasciviousness on the part of the photographer or consumer)."
Brief for the United States, Knox (No. 92-1183), at 9. The Third Circuit
disagreed. Instead, the court followed the Ninth Circuit approach, holding that
lasciviousness describes material "presented by the photographer [so] as to
arouse or satisfy the sexual cravings of a voyeur." Knox, 32 F.3d at 747
(quoting Wiegand, 812 F.2d at 1244).
n298. It is perhaps for this reason that the First Circuit recently termed this
"the most confusing and contentious of the Dost factors." Amirault, 173 F.3d at
n299. United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).
n300. Knox, 32 F.3d at 747.
n301. Dost, 636 F. Supp at 833.
n303. As argued above, one result of this sexualization may be that more people
feel sexual desire for children. But that is not the only result that I mean to
suggest. Rather, I argue that we see children as inextricable from sex. The
reaction to this union will vary with each observer.
n304. Child Pornography Prevention Act of 1996, Pub. L. 104-208 21(11)(A).
n305. See Adler, Inverting the First Amendment, supra note 6. Of course, I also
doubt that this is the only effect of child pornography law. Like all speech,
child pornography law will have multiple effects. See Adler, What's Left, supra
note 168, at 1541-47 (describing multiple and conflicting readings that arise
n306. I return to this argument, and the construction of the category "the
child" below in Part IV.B.2, where I explore the fit between my analysis and
Foucault's theories of sexuality. Cf. Bell, supra note 8, at 86 (noting social
construction of children as "simultaneously sexual and not sexual, as innocent
and as provocative"); Wendy Brown, Freedom's Silences, in Censorship and
Silencing: Practices of Cultural Regulation 322 (Robert C. Post ed., 1998) ("To
speak repeatedly of trauma is a mode of encoding it as identity."); Charles
Taylor, Foucault on Freedom and Truth, 12 Pol. Theory 152, 158 (1984) (stating
that discourses "bring[ ] about a new kind of subject and new kinds of desire
Once again, I do not argue that child pornography law makes us all into
pedophiles. Rather, I argue that child pornography law makes us share the gaze
if not the desire of the pedophile; it thereby shapes the category of "child."
For the classic work establishing that the "child" as a category is socially
constructed, see generally Phillippe Aries, Centuries of Childhood: A Social
History of Family Life (Robert Baldick trans., Vintage Books 1962) (1960).
n307. A question posed by the court in Dost. See United States v. Dost, 636 F.
Supp. 828, 833 (S.D. Cal. 1986).
n308. Numerous states explicitly prohibit the depiction of boys' "'covered male
genitals' in a 'discernibly turgid state.'" See Osborne v. Ohio, 495 U.S. 103,
127 (1990) (quoting Ohio Law); see also N.J. Stat. Ann. 2c: 34-3(a)(3)(b)
(defining as obscenity "Human male genitals in a discernibly turgid state, even
if covered"). The Solicitor General and the Court of Appeals in Knox wrestled
with the realization that girls' genitals would not be so easily visible. The
Solicitor General, arguing for a "visibility" standard, concluded that even
though girls could not display "turgidity," "the genitals and pubic areas of
girls may also be visible in some circumstances even if the girls are not
completely nude." Brief for the United States, supra note 297, at n.3.
n309. The Knox courts struggled to understand what a child's pubic area is. The
district court had concluded that since the "pubic area would appear to be the
region of the human anatomy in close proximity to the genitals," it included
"specifically the uppermost portion of the inner thigh area closest to the ...
genitals [that] was clearly exposed." United States v. Knox, 776 F. Supp. 174,
180 (N.D. Pa. 1991). The Court of Appeals disagreed and after a scholarly
discussion concluded that the "inner thigh is not part of the pubic area."
United States v. Knox, 32 F.3d 733, 738-39 (3d Cir. 1994).
n310. Butler, supra note 214, at 129. Butler views this position, however, as an
incomplete account of the complexity of censorship.
n311. For an interesting account of campaigns against masturbation and their
cultural and legal significance, see Geoffrey P. Miller, Law, Pollution and the
Management of Social Anxiety, Mich. Women's L.J. (forthcoming, 2001) (draft on
file with author).
n312. Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings
1972-1977, at 120 (Colin Gordon ed., Colin Gordon et al. trans., Pantheon Books
n313. Nelson, supra note 47, at 270-72.
n314. See People v. Hall, 16 N.Y.S.2d 328, 329 (Jefferson County Ct. 1939)
(attempted sodomy case in which court stated the "nature of the case precludes a
discussion of the facts"). This case is discussed in Nelson, supra note 47, at
n315. Halsey v. New York Soc'y for the Suppression of Vice, 136 N.E. 219, 223
(N.Y. 1922). Another court refused even to name a book that was the subject of
prosecution for fear of "exciting the curiosity of the prurient." People v.
Berg, 272 N.Y.S. 586, 587 (N.Y. App. Div. 1934), aff'd 199 N.E. 513 (N.Y. 1935);
see also Commonwealth v. Holmes, 17 Mass. 336, 337 (1821) (arguing that any
mention of book "would be to require that the public itself should give
permanency and notoriety to indecency, in order to punish it").
n316. See generally, Amy Adler, What's Left, supra note 168. There I analyzed
activist speech that appropriated and subverted the hate speech and pornography
it opposed. I showed the ways in which such well intentioned activist speech
risked participating in the very problems it attacked (and conversely, that as
pornography and hate speech may inadvertently give rise to activism on behalf of
women and people of color). Throughout that article, I considered examples where
hate speech and its opposite appeared indistinguishable. Here, in child
pornography law, the language of law is obviously different from child
pornography in one important way: Child pornography by definition uses the
language of pictures whereas law uses words to describe these pictures. It
translates the initial harmful image into another medium. But like any (good)
translation, it retains the flavor and danger of the "original."
n317. See id. at 1560-62.
n318. Cf. Kincaid, Child Loving, supra note 108, at 3 (Our talk of pedophilia is
"busy rejecting the pedophile that it is at the same time, creating.").
n319. Cf. Charles Taylor, Foucault on Freedom and Truth, in Foucault: A Critical
Reader 69 (David Couzens Hoy, ed., 1986) (The strength of power lies partly in
its disguise as "science, or fulfillment, even 'liberation.'").
n320. For Foucault's own descriptions of power, see, e.g., History of Sexuality,
supra note 278, at 92 (stating that power is "the multiplicity of force
relations immanent in the sphere in which they operate and which constitute
their own organization"); id. at 93 ("Power is everywhere; not because it
embraces everything, but because it comes from everywhere"). For further
discussion of Foucault's notion of power, see Hubert L. Dreyfus & Paul Rabinow,
Michel Foucault: Beyond Structuralism and Hermeneutics (1982); David Garland,
Punishment and Modernity 131-177 (1990); C.G. Prado, Starting with Foucault: An
Introduction to Genealogy (1995); Tamsin Spargo, Foucault and Queer Theory
(1999); Foucault: A Critical Reader (David Couzens Hoy ed., 1986); Feminism &
Foucault: Reflections on Resistance (Irene Diamond & Lee Quinby eds., 1988). I
should note Foucault's indication that law operates as a sovereign, or
juridico-discursive, mode of power, a mode that has been displaced (albeit not
completely) by "productive" power. Foucault, History of Sexuality, supra note
278, at 82-91. My argument here highlights the productive aspects of law, the
way it functions not only as prohibition but also as discourse. In my view, some
of Foucault's references to law in The History of Sexuality, Vol. 1, seem to
underestimate law's discursive and normalizing qualities.
n321. For an interesting analysis of this problem in the context of sexual
harassment law, see Janet Halley, Sexuality Harassment (forthcoming, draft on
file with author).
n322. I should note that when it comes to the precarious subject of child sex,
it seems dangerous to invoke Foucault. In at least two places in his work, he
seems to go beyond any analysis of discursive power and to envision a free
sexuality between adults and children. First, in what Foucauldian scholars have
explained as a lapse, Foucault actually argued that adult-child "consensual sex"
should not be restrained by law. See Bell, supra note 8, at 151. As one critic
describes it, Foucault along with others in the Parisian intellectual elite,
published in the wake of the revolution of 1968 a special issue of the scholarly
journal Recherches "extolling cross-generational sexual encounters." Nancy
Scheper-Hughes & Carolyn Sargent, Introduction, in Small Wars: The Cultural
Politics of Childhood 29 n.3 (1998). This is viewed as a lapse because the
notion of a pre-discursive free sexuality seems inconsistent with Foucault's
And then there is the controversial and provocative passage in The History of
Sexuality, Vol. 1, in which Foucault writes of an encounter in 1867 in which a
simple-minded "farm hand ... obtained a few caresses from a little girl."
Foucault, History of Sexuality, supra note 271, at 31. Foucault describes this
incident of what we would now call child sexual abuse as nothing more than
"inconsequential bucolic pleasures." Id. He writes of the "pettiness" of how
these pleasures "could become, from a certain time, the object not only of a
collective intolerance but of a judicial action, a medical intervention, a
careful clinical examination" and so on. Id.
n323. "Rather than a massive censorship, beginning with the verbal proprieties
imposed by the Age of Reason, what was involved was a regulated and polymorphous
incitement to discourse." Id. at 34.
n324. Id. at 158.
n325. Id. at 38.
n326. Id. at 78 ("The West has managed ... to annex sex to a field of
n327. Id. at 20.
n328. The surveillance invoked by child pornography law, which I described in
Part IV.A, supra, provides an example. Megan's laws, described above, provide
n329. Foucault, History of Sexuality, supra note 278, at 23.
n330. See Michel Foucault, The Archaeology of Knowledge 79 (1972); Foucault,
History of Sexuality, supra note 278, at 23.
n331. See Foucault, History of Sexuality, supra note 278, at 158-59.
n332. Id. at 27.
n333. Id. at 12.
n334. Id. at 30.
n335. Butler, supra note 214, at 94.
n336. For the classic work establishing that the "child" as a category is
socially constructed, see Aries, supra note 306. Aries argues that prior to the
seventeenth century, children were not distinguished as such but rather seen as
miniature adults. The seventeenth century introduced the notion of childhood
innocence and vulnerability. This conception of childhood flourished in the
romantic era, which idealized the child as the standard bearer of purity.
n337. Taylor, supra note 319, at 75-76.
n338. Bell, supra note 8, at 86.
n339. Cf. Wendy Brown, Freedom's Silences, in Censorship and Silencing:
Practices of Cultural Regulation 319 (Robert C. Post ed., 1998) (discussing
women's sexuality); see also id. at 322 ("To speak repeatedly of trauma is a
mode of encoding it as identity.").
n340. For discussion of these concepts, see generally Foucault, History of
Sexuality, supra note 278. Foucault describes children's sexuality as being both
"precious and perilous, dangerous and endangered." Id. at 104. Foucault's work
here recalls Frazer's analysis of the ambivalence that is evoked in certain
tribal cultures by a person who is deemed taboo. Frazer writes: "The common
feature of all these persons is that they are dangerous and in danger." Sir
James Gengi Frazer, The Golden Bough, Chapter XXI "Tabooed Things," 161 (1972).
Freud's work in Totem and Taboo of course builds on Frazer's work on the
This power affects not only children, but adults. It governs our behavior with
children: I believe it also affects our relationship to ourselves. Freud posited
that childhood sexuality holds the key to adult neuroses. From this perspective,
as we rethink the meaning of child sexuality, we may also rethink our own
histories, and therefore our own "identities."
n341. Was Foucault right? Obviously, any answer to this is beyond the scope of
this Article. I present child pornography as a case study in which Foucault's
argument seems plausible. And I also suggest that if we take Foucault's argument
seriously - a decision left to the reader - then it presents a dramatic
challenge to the conventional view of free speech law.
The most common criticism of Foucault's work is that it is missing "an answer to
the question 'What is to be done?'" Barry Smart, The Politics of Truth and the
Problem of Hegemony, in Foucault: A Critical Reader 166 (1986); see also Michel
Foucault, Politics and the Study of Discourse, 3 Ideology and Consciousness 8
(1981) (confronting criticism that his work removes "all basis for a progressive
political intervention"). Foucault answered this criticism by identifying a
different goal for his work. He aimed for a state in which people "'no longer
know what to do'; so that the acts, gestures, discourses which up until then had
seemed to go without saying became problematic... ." Michel Foucault, Questions
of Method, 8 Ideology and Consciousness 12 (1981).
In the same way, the reader may question the lack of any normative prescription
in this Article. No easy solution presents itself in response to my argument. A
first step to any solution, however, must be to articulate a problem in all of
its complexity. I have sought to do that here.
n342. This may explain the relative paucity of First Amendment scholarship that
enlists a Foucauldian perspective, (when compared, for example, to the more
frequent use of Foucault in criminal law scholarship). For one notable
exception, see Robert C. Post, Censorship and Silencing, in Censorship and
Silencing: Practices of Cultural Regulation 1 (Robert C. Post ed., 1998).
n343. There are notable exceptions. First, Catharine MacKinnon and
anti-pornography feminists, as well as many at the forefront of the critical
race studies movement to ban "hate speech," have challenged the liberal free
speech tradition. See Adler, What's Left, supra note 168, at 1500. Second, there
simply is no liberal movement to uncensor child pornography. But even in this
most forbidden of realms, it is assumed I think that discussion of child
pornography is a positive, or at least necessary, remedy.
n344. Louis Brandeis, Other People's Money 92 (1933).
n345. See, e.g., 142 Cong. Rec. S11,900 (daily ed. Sept. 30, 1996) (statement of
Sen. Biden) (stating that child pornography causes "a harm that is
unspeakable"). The idea that child pornography and sexual abuse were, until
recently, a vast societal secret is reflected in the consistent use of the word
"silence" in the literature - to refer to the silence of the victims and our
societal silence on the subject. See John Crewdson, By Silence Betrayed 42 - 54
(1988) (describing experience of victims and their subsequent reluctance to tell
others of the abuse); see also Bell, supra note 8, at 79 (describing feminist
task of "breaking the silence" regarding incest). This talk of silence has
become deafening. For a discussion of the way in which silence functions as part
of discourse within Foucault's framework, see Wendy Brown, Freedom's Silences,
in Censorship and Silencing: Practices of Cultural Regulation, supra note 339,
n346. And law review articles. This Article, of course, contributes to the
discursive explosion surrounding child pornography. It may therefore participate
in some of the very problems surrounding discourse that it exposes. I make no
claim that I can escape the dangers I describe.
n347. Foucault, History of Sexuality, supra note 278, at 27.
n348. One effect of "our obsessive focus on protection is to saturate children
with a sexual discourse that inevitably links children, sexuality, and erotic
appeal." Kincaid, Erotic Innocence, supra note 40, at 101.
n349. In this way, the Foucauldian position bears something in common with
Freud's view that there is no negation in the unconscious. Butler, supra note
214, at 84. (I note the similarity in spite of Foucault's view of his work as an
attack on Freud).
n350. Vikki Bell writes that, in light of Foucault's work, the feminist hope to
"break the 'conspiracy of silence' around sexual abuse" is "na<um i>ve" and
"slavish[ ]." Feminists are in a trap of "producing more and more talk on sex
that, far from liberating us, ensnares us deeper into the web." Bell, supra note
8, at ix; cf. Kincaid, Producing Erotic Children, supra note 87, at 250
("Turning the accuser into the accused, swapping villain and victim, does not,
when you look at it, seem like that much of a change.").
n351. Lewis Carroll, Alice in Wonderland and Through the Looking Glass 283
(Grosset & Dunlap, Inc. 1999) (1872).