Regulation of Child Pornography
The issue: How far does the First Amendment allow government to go in restricting sexual material involving minors?  

The government has a stronger interest in regulating sexual material involving minors that it does when the material depicts consenting adults.  Children used in producing these materials are generally victims--and it is often difficult to identify who produced the materials, given the clandestine distribution network.  The Supreme Court concluded in Osborne v Ohio (1990) that the mere possession of child pornography could be criminally punished as a means of reducing demand for the harmful materials.

New York v Ferber
underscores the strength of the state's interest in protecting minors from the harmful effects of pornography.  Ferber holds that state's may proscribe sexual material involving minors, even if that material may not meet all of the prongs of the Miller test.

In Ashcroft v Free Speech Coalition, the Court considered a challenge to the Child Pornography Prevention Act of 1996 which made it illegal, under certain circumstances, to distribute or possess sexually explicit computer- generated images of children, or of persons over eighteen who looked under eighteen. The Court, noting the law in question did not serve the goal of preventing direct sexual exploitation of children, found it to be unconstitutionally overbroad.  Writing for the Court, Justice Kennedy suggested that the law might have been enforced against such movies as Oscar-winning American Beauty or Romeo and Juliet.

In 2008, in United States v Williams, the Court considered Congress's latest effort to attack the problem of child pornography on the Web.  The PROTECT Act of 2003 made it a crime to knowingly advertise or promote visual depictions of minors engaging in sexually explicit activity.  Writing for the Court, Justice Scalia found the law to be a constitutionally permissible effort to criminalize the proposing of an illegal transaction.  Scalia reasoned that because child pornography is not protected speech, speech that proposes to sell or provide such material is no more protected by the First Amendment than would be speech that proposed to sell or provide illegal drugs.  Justices Souter and Ginsburg dissenting, finding the law substantially overbroad.

New York v. Ferber (1982)
Ashcroft v Free Speech Coalition(2002)
United States v Williams (2008)

Scene from the movie American Beauty.
1.  If a person charged with distributing or possessing child pornography defends by arguing that the images in question were either computer-generated, will it be difficult for the prosecution to prove beyond a reasonable doubt that the image was in fact that of a real minor? 
2.  Should it be constitutional to punish someone who computer-grafts an image of a  real child's face to a sexually explict, computer-generated body--or to the sexually-explicit image of the body of an eighteen-year-old?     

 Exploring Constitutional Conflicts Homepage