Adler, The Perverse Law of Child Pornography

101 Colum. L. Rev. 209, *

Columbia Law Review

March, 2001

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

ARTICLE: THE PERVERSE LAW OF CHILD PORNOGRAPHY

Amy Adler*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

final draft.

TEXT:

[*209] [*210] Introduction

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

not to enquire further.

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

Child pornography law is the least contested area of First Amendment

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

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

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

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

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

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

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

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

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

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

rights. 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

significant expansion, largely unchecked by critical inquiry. From its

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

and an ungainly creature it is.

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

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

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

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

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

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

would say cause - of child molestation. 9

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

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

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

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

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

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

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

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

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

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

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

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

the threat to children.

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

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

abuse, including child pornography? Does their correlative temporal connection

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

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

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

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

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

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

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

with a burgeoning social crisis.

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

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

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

possibility that certain sexual prohibitions invite their own violation by

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

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

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

have unwittingly heightened pedophilic desire.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

multiplied.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the cultural transformation in our notion of childhood sexual vulnerability has

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

explore the first of two causal accounts of the chronological correlation

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

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

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

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

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

to constrain.

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

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

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

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

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

different light, as an institution that actively

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

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

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

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

through which to contemplate the peculiar problems that present themselves when

law attempts to govern representations of sexual desire. 19

I. The Cultural Crisis of Child Sexual Abuse 20

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

reinjury. 30

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

tandem.

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

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

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

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

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

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

of child pornography at its center.

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

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

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

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

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

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

epidemic." 40

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

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

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

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

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

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

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

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

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

been impossible to predict even ten years ago." 43

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

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

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

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

of the cultural context in which child pornography law operates.

A. The Discovery and Rise of Child Sexual Abuse

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

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

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

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

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

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

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

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

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

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

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

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

this rise represents an actual increase in incidents of

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

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

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

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

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

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

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

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

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

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

displace other collective unconscious anxieties and contradictions in American

society. 49

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

inside or outside the family.

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

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

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

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

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

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

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

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

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

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

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

theory of childhood sexual development.

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

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

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

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

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

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

critics contended that psychoanalysis - and our modern understanding of the

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

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

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

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

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

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

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

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

afoot. 66

Our cultural preoccupation has taken root and blossomed in several different

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

abusers - usually their parents.

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

mainstream psychiatric professionals, many of whom insist that recovered

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

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

childhood sexual abuse. 78 Ian Hacking compares the multiple personality

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

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

child sexual abuse, the diagnosis of multiple personality disorder has

engendered bitter disagreement among professionals, some of whom contend that

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

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

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

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

the disease has increased exponentially since 1980. 82

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

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

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

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

investigators and prosecutors questioned the children in a manner that implanted

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

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

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

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

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

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

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

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

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

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

increased public interest in retribution against child molesters, evidenced for

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

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

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

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

repeated child molestation.

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

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

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

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

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

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

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

interstate facilities to transmit information about a minor for criminal sexual

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

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

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

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

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

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

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

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

he breaks down and confesses his sordid history of childhood sexual

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

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

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

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

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

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

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

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

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

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

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

childhood sexual abuse may have been exaggerated. 107

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

sexual vulnerability has become one of their most prominent characteristics.

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

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

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

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

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

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

harassment. 109

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

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

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

and childhood sexuality as manipulative, conniving and filled with murderous

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

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

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

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

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

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

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

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

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

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

palatable, but it has come at a cost. 113

[*230]

B. The Discovery and Rise of Child Pornography

The distress surrounding child sexual abuse fostered the growth of new

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

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

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

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

child pornography proved the most fertile.

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

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

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

presence.

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

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

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

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

1970s, when awareness and concern about child pornography escalated

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

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

multimillion dollar child pornography market." 117 The media convergence

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

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

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

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

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

it had entered so many other realms of our society.

[*231]

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

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

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

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

International Child Pornography Investigation and Coordination Center, founded

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

task forces from one to ten. 122

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

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

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

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

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

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

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

constitutes a crime. 125

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

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

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

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

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

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

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

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

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

of line with the scale of the problem. 130

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

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

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

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

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

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

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

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

any time. 132

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

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

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

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

appears to be comparatively little domestic commercial production of child

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

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

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

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

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

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

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

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

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

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

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

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

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

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

nationwide network of individuals openly advertising their desire to exploit

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

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

engaging in sexually explicit acts." 142

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

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

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

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

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

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

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

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

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

II. The Law of Child Pornography

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

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

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

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

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

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

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

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

child pornography, and the widening definition of the term.

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

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

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

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

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

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

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

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

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

child pornography law has been primarily to accept legislative enactments and

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

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

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

would entertain even broader definitions of child pornography than current ones

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

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

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

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

pornography law.

[*236]

A. Creation Of Child Pornography Law

Congress passed its first child pornography legislation, the Protection of

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

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

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

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

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

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

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

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

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

laws. 157 The 1982 Ferber case removed that barrier.

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

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

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

constitutional protection. 159 The Ferber Court encountered a novel First

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

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

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

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

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

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

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

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

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

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

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

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

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

following the enactment of the 1984 law. 164

[*238]

B. Definition of "Child Pornography"

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

abuse, have tolerated statutes that define child pornography in increasingly

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

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

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

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

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

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

167

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

launched the most problematic aspect of defining child pornography. Determining

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

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

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

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

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

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

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

grown.

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

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

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

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

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

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

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

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

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

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

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

could be an accident of pictorial composition. 171

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in the case.

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

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

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

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

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

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

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

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

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

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

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

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

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

prosecutorial vigilance.