What Is Child Pornography
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What is Child Pornography?
Child pornography is generally considered to entail producing, possessing or distributing images of minors engaged in sexual conduct. Displaying child pornography on the Internet is illegal in the United States. Some states in the United States and many countries allow sexual conduct and marriage between adults and minors, but visual depictions of that conduct are prohibited in the United States by federal law. Similarly, sexual conduct between minors or by a minor is often tolerated but visual depictions of that conduct are also prohibited. Child pornography laws in the United States exist to protect children and are strictly enforced. This ambiguity involved in defining child pornography has led to much debate in the attempts to regulate child pornography.
In federal law, the term child pornography has most recently been defined in Title 18, Part I, Chapter 110 of the United States Constitution. This section includes the definition of key terms including: . minor: “any person under the age of eighteen years” . sexually explicit conduct: “actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person” . child pornography: “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where- (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.”
The First Amendment:
The First Amendment of the U.S. Constitution (http://en.wikipedia.org/wiki/United_States_Constitution/Amendment_One) states, "Congress shall pass no law abridging the freedom of speech." Consequently, the First Amendment of the United States Constitution and pornography have shared a strange relationship over the years. Numerous states, as well as the federal government, have passed legislation attempting to regulate, restrict or completely ban speech that is pornographic.
Unlike pornographic images of adults, the First Amendment does not protect the possession or distribution of child pornography. Content that depicts children engaged in sexual conduct is "a category of material outside the protection of the First Amendment." New York v. Ferber, 458 U.S. 747 1982. The First Amendment does protect some material that could be considered child pornography, for example images in a medical textbook that show a child's genitalia. This has created a fine line, causing many to boycott companies whose advertising or use of children inappropriate and even illegal.
Follow this link to see one group’s opposition to designer Calvin Klein’s use of children in his advertising. http://www.talkintrash.com/adv/CK/index.html
Want to know more? Law professor Michael Landau studies child pornography and its relation to first amendment issues in his 2002 article “ The First Amendment and "Virtual" Child Pornography”
Recent Child Pornography Legislation:
The Communications Decency Act of 1996 (CDA)
This Act sought to criminalize the "display" of "patently offensive" speech "in the manner available to a person [younger than] 18 years of age". In 1997, the Supreme Court overturned key provisions of the Act on the grounds that they were in breach of the First Amendment. The case was ACLU v Reno, where the plaintiff was the American Civil Liberties Union and the defendant was the US Attorney-General Janet Reno.
For information on the CDA ruling click here (http://www.epic.org/free_speech/CDA/)
The Child Pornography Prevention Act of 1996 (CPPA)
This Act amends the definition of child pornography in the Child Protection Act of 1984 to include that which actually depicts the sexual conduct of real children and that which appears to be a depiction of a child engaged in sexual conduct. In December 1999, the 9th Circuit Court of Appeals in San Francisco found that two provisions of the Act are not in accordance with the First Amendment. These two provisions concern what might be called “virtual child pornography” – that is, computer-generated images rather than photographs of actual children. In April 2002, the Supreme Court confirmed that these provisions of the Act are in breach of the First Amendment.
For information on the CPPA ruling click here (http://www.internetlawjournal.com/content/litigationheadline09010201.htm) The Children's Online Privacy Protection Act of 1998 (COPPA)
This Act seeks to prohibit Web site operators from making pornographic or otherwise “obscene” images available to children. The Supreme Court struck down the first version of this law and later refused to sign off on its replacement which has never taken effect. In March 2004, the Supreme Court took a second look this legislation which would make it a crime for commercial Web sites knowingly to place material that is "harmful to minors" within their unrestricted reach.
For a guide to COPPA click here (http://www.ftc.gov/bcp/conline/pubs/buspubs/coppa.htm)
The PROTECT Act of 2003
The PROTECT Act, among many other provisions, would outlaw digitally "morphed" images made to appear as if children are having sex or being used in pornographic images. Morphed child porn would be illegal if prosecutors can prove beyond reasonable doubt that the maker intended others to believe that the images were actual child pornography. Also included in this bill is a prohibition against misleading domain names that lead children to pornography Web sites. The bill was signed into law by President Bush on April 30, 2003.
For a guide to the PROTECT Act click here (http://www.usdoj.gov/opa/pr/2003/April/03_ag_266.htm)
Child Pornography and the Internet
Computers and the Internet have made the problem even more complicated. How does one determine the "contemporary community standard" when the allegedly offensive speech or images are on the Internet? Should one apply the standards of the state where the material originates, or should one apply the law of the state where such content is downloaded? At least one court did the latter. In United States v. Thomas, a 1996 case decided by the U.S. Court of Appeals for the Sixth Circuit, dealing primarily with venue and jurisdiction, U.S. Postal Inspectors downloaded images from California to Tennessee to be able to apply a tougher standard regarding offensiveness and obscenity.
Regulation of Child Pornography
As child pornography has been declared illegal, It has been almost universally recognized that regulation of child pornography should not be protected under the first amendment. The American Civil Liberties Union, (http://www.aclu.org/about/aboutmain.cfm) however, sees such existing US legislation as the as the CDA as an unconstitutional restraint on free speech on the Internet. Their first amendment-based views were expressed in the 1997 case ACLU v. Janet Reno (http://supct.law.cornell.edu/supct/html/96- 511.ZS.html)
There are two opposing sides to the issue of regulating child pornography on the Internet. These can be grouped into two broad arguments and can be seen in these various example sights: 1.) self-regulation . “Legal Liability of Internet Service Providers”, an article by Edmund Burke http://www.gigalaw.com/articles/2001/burke-2001-05.html
. “Governance of Pornography and Child Pornography on the Global Internet: A Multi-Layered Approach”, from Edwards, L and Waelde, C eds., Law and the Internet: Regulating Cyberspace, Hart Publishing, 1997, pp 223-241. http://www.cyber-rights.org/reports/governan.htm . “ISP’s Approach to Tackle Child Pornography on the Internet”, a report by euroISPA http://www.euroispa.org/docs/040116_eispa_tcrime.pdf
2.) governmental regulation