Child Pornography: Constitutional Principles and Federal Statutes
Released: 2008-10-10T00:00:00

Constitutional Principles

The First Amendment provides: "Congress shall make no law ... abridging the freedom of speech, or of the press." In general, the First Amendment protects pornography, with this term being used to mean any erotic material. The Supreme Court, however, has held that the First Amendment does not protect two types of pornography: obscenity and child pornography. Consequently, they may be banned on the basis of their content, and federal law prohibits the mailing of child pornography as well as its transport or receipt in interstate or foreign commerce by any means, including by computer.

A. Obscenity2

Most pornography is not legally obscene; to be obscene, pornography must, at a minimum, "depict or describe patently offensive 'hard core' sexual conduct." Miller v. California , 413 U.S. 15, 27 (1973). The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene. The Miller test asks:

(a) whether the "average person applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The Supreme Court has allowed one exception to the rule that obscenity, as defined by Miller , is not protected under the First Amendment. In Stanley v. Georgia , 394 U.S. 557, 568 (1969), the Court held that "mere private possession of obscene material" is protected. The Court wrote:

Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.

Id . at 565.

B. Child Pornography

Child pornography is material that " visually depicts sexual conduct by children below a specified age." New York v. Ferber , 458 U.S. 747, 764 (1982) (emphasis in original). It is unprotected by the First Amendment even when it is not legally obscene; i.e., child pornography need not meet the Miller test to be banned. However, the Court held in Ferber that, as with obscenity,

the conduct to be prohibited must be defined by the applicable state law, as written or authoritatively construed.... The category of "sexual conduct" proscribed must also be suitably limited and described.

Id . at 764.

In Massachusetts v. Oakes , 491 U.S. 576, 579 (1989), the Supreme Court considered a Massachusetts statute that made it a crime knowingly to permit a child under 18 "to pose or to be exhibited in a state of nudity ... for purpose of visual representation or reproduction in any book, magazine, pamphlet, motion picture film, photograph, or picture." The defendant in the case had been convicted for taking topless photographs of his 14-year-old stepdaughter, but the Massachusetts Supreme Judicial Court reversed on the ground that the statute was overbroad because it would make "a criminal of a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool." Id . at 581. While the case was pending before the Supreme Court, the statute was amended to allow convictions only where nude pictures are taken "with lascivious intent." This amendment made moot the question of whether the statute under which the defendant was convicted was overbroad. However, it left open the question whether the statute under which the defendant was convicted could constitutionally be applied to him; i.e., whether his conduct was protected by the First Amendment. The Supreme Court remanded the case for this to be decided.

In Osborne v. Ohio , 495 U.S. 103 (1990), the Supreme Court held that the Stanley v. Georgia right to possess obscene material in one's home does not extend to child pornography. The difference is that:

In Stanley , Georgia primarily sought to proscribe the private possession of obscenity because it was concerned that obscenity would poison the minds of its viewers. We responded that "[w]hatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts."

Id . at 109 (citations omitted).

In Osborne , by contrast,

the State does not rely on a paternalistic interest in regulating Osborne's mind. Rather, Ohio has enacted [its statute prohibiting possession of child pornography] in order to protect the victims of child pornography; it hopes to destroy a market for the exploitative use of children.... It is ... surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.... Other interests also support the Ohio law. First, as Ferber recognized, the materials produced by child pornography permanently record the victim's abuse. The pornography's continued existence causes the child victims continuing harm by haunting the children in years to come. The State's ban on possession and viewing encourages possessors of these materials to destroy them. Second, encouraging the destruction of these materials is also desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity.

Id . at 109-111 (citations omitted).

In Ashcroft v. Free Speech Coalition , 535 U.S. 234 (2002), the Supreme Court held that child pornography that is produced without using an actual minor is protected by the First Amendment. We discuss this case in the section below titled " Section 2256 ."

Federal Child Pornography Statutes

Federal child pornography statutes are codified at 18 U.S.C. §§ 2251-2260. These sections, including selected court cases that have ruled on their constitutionality or interpreted them, are summarized in numerical order. After that, the Children's Internet Protection Act and the Federal Racketeer Influenced and Corrupt Organizations Act (RICO) are considered, to the extent that they incorporate child pornography crimes.

A. 18 U.S.C. §§ 2251-22608

Section 2251

Sexual exploitation of children. Subsection (a) of this section makes it a crime to use a minor in child pornography if the pornography has one of three specified connections to commerce. The phrase "use a minor in child pornography" in the preceding sentence is a synopsis of the following statutory language:

employs, uses, persuades, induces, entices, or coerces any minor to engage in, or ... transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ....

Subsection (b) makes it a crime for "[a]ny parent, legal guardian, or person having custody or control of a minor" knowingly to permit such minor to engage in child pornography that has one of three specified connections to commerce.

Subsection (d) makes it a crime for any person knowingly to publish notices or advertisements for child pornography or for "participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct," if "such person knows or has reason to know that such notice or advertisement will be transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed," or if "such notice or advertisement is transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed."

Section 2251A

Selling or buying of children. This section imposes a minimum 30-year sentence on "[a]ny parent, legal guardian, or other person having custody or control of a minor who sells or otherwise transfers custody or control of such minor, or offers to sell or otherwise transfer custody or control of such minor" (1) with knowledge that, as a consequence of the sale or transfer, the minor will be portrayed in child pornography, or (2) with intent to promote the participation of the minor in child pornography. It imposes the same sentence on the person who purchases or otherwise obtains custody or control of the child for one of these purposes. "Custody or control" is defined to include "temporary supervision or responsibility for a minor whether legally or illegally obtained." 18 U.S.C. § 2256(7).

In order for a person to be guilty under § 2251A, there must be a nexus with interstate or foreign commerce, namely that, in the course of the offense, either the minor or the defendant have traveled or be transported in or affecting interstate or foreign commerce, the offer for transfer of custody or control have been "communicated or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mail," or the offense have been committed in a territory or possession of the United States.

Section 2252

Certain activities relating to material involving the sexual exploitation of minors. This section, unlike § 2252A, applies only to child pornography that depicts actual children. It makes it a crime (1) knowingly to transport or ship child pornography by any means, including by computer or mail, (2) knowingly to receive or distribute child pornography that has been transported or shipped in or affecting interstate or foreign commerce by any means including by computer or mail, and (3) knowingly to reproduce child pornography for distribution in or affecting interstate or foreign commerce by any means including by computer or mail.

Section 2252 also makes it a crime, in two situations, knowingly to possess or to access with intent to view "1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction ... of a minor engaging in sexually explicit conduct." It shall be an affirmative defense, however, that the defendant "possessed less than three matters containing [such] visual depiction" and "promptly and in good faith, and without retaining or allowing any person other than a law enforcement agency, to access any [such] visual depiction ... (A) took reasonable steps to destroy each such visual depiction; or (B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction." 18 U.S.C. § 2252(c).

The two situations in which the crime of knowing possession and the affirmative defense apply are: (1) "in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country as defined in section 1151 of this title," and (2) if the material "has been mailed, or has been shipped or transported in interstate or foreign commerce, or ... was produced using materials which have been mailed or so shipped or transported, by any means including by computer." 18 U.S.C. § 2252(a)(4).

In the most natural grammatical reading of § 2252, the word "knowingly" applies to transporting, shipping, receiving, or distributing child pornography, but does not require that the person doing these things know that the material is child pornography. Nevertheless, in United States v. X-Citement Video, Inc. , 513 U.S. 64 (1994), the Supreme Court held that the statute must be read to require that the defendant knew that the material depicted sexually explicit conduct and that at least one of the performers was a minor. The Court read the statute this way "because of anomalies that would result from [the most natural grammatical reading of the statute], and because of the respective presumptions that some form of scienter [knowledge] is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions." Id . at 68-69.

As for anomalies that would result from limiting the application of "knowingly" to the acts of transporting, shipping, receiving, and distributing, the Court observed that doing so would make the statute apply to a retail druggist who returns an uninspected roll of developed film to a customer, and would make it apply to a new resident of an apartment who receives the mail for the prior resident and stores it unopened. As for constitutional questions to be avoided, in Smith v. California , 361 U.S. 147, 153 (1959), the Supreme Court held that the First Amendment prohibits prosecution of a book distributor for possession of an obscene book unless the distributor has "knowledge of the contents of the book."

In United States v. Knox , the defendant was convicted of violating § 2252 for possessing videotapes that focused on the genitalia and pubic area of minor females, even though those body parts were covered by opaque clothing. The Court of Appeals for the Third Circuit affirmed, and the Supreme Court agreed to hear the case, but the Solicitor General filed a brief for the United States agreeing with the defendant that the statute did not apply to depictions of clothed children. In November 1993, the Supreme Court sent the case back to the Third Circuit for reconsideration in light of the Solicitor General's opinion. The Third Circuit, nevertheless, in June 1994, reaffirmed Knox's conviction. Knox again asked the Supreme Court to hear the case, and this time the Solicitor General agreed with the Third Circuit that the statute applied to depictions of clothed children. The Supreme Court, however, declined to review the case, and Knox's conviction stands.

Between the Supreme Court's two actions, Congress apparently amended the statute to apply explicitly to depictions of clothed children. P.L. 103-322 , § 160003(a) (1994), states:

The Congress declares that in enacting sections 2252 and 2256 of title 18, United States Code, it was and is the intent of Congress that—

(1) the scope of "exhibition of the genitals or pubic area" in section 2256(2)(E), in the definition of "sexually explicit conduct," is not limited to nude exhibitions or exhibitions in which the outlines of those areas were discernible through clothing; and

(2) the requirements in section 2252(a) (1)(A), (2)(A), (3)(B)(i), and (4)(B)(i) that the production of a visual depiction involve the use of a minor engaging in "sexually explicit conduct" of the kind described in section 2256(2)(E) are satisfied if a person photographs a minor in such way as to exhibit the child in a lascivious manner.

Section 2252A

This section was created by the Child Pornography Prevention Act of 1996 (CPPA), P.L. 104-208 , 110 Stat. 3009-26, and amended several times, including by the PROTECT Act, P.L. 108-21 (2003). The CPPA added a definition of "child pornography" to 18 U.S.C. § 2256, and this definition was also amended by the PROTECT Act. As so amended, it prohibits any "digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct," even if no actual minor was used to produce the image. This definition, before and after its amendment by the PROTECT Act, is discussed below under " Section 2256 ."

With respect to child pornography as so defined, § 2252A, as amended by the PROTECT Act, imposes essentially the same prohibitions as § 2252, which were described above. Specifically, § 2252A(a) makes it a crime knowingly to (1) mail, transport, or ship child pornography in or affecting interstate or foreign commerce, by any means, including by computer; (2) receive or distribute child pornography that has been mailed, shipped, or transported in violation of (1); (3)(A) reproduce any child pornography for distribution in violation of (1); (3)(B) advertise, promote, present, distribute, or solicit any material in a manner that reflects the belief, or that is intended to cause another to believe, that the material is child pornography that is obscene or that depicts an actual minor; (4) sell or possess with the intent to sell child pornography that has been mailed, or shipped or transported in or affecting interstate commerce (and in specified other circumstances); (5) knowingly possess or knowingly access with intent to view, in specified circumstances, "any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography" ; or (6) distribute, offer, send, or provide to a minor any visual depiction that is or appears to be of a minor engaging in sexually explicit conduct, "for purposes of inducing or persuading a minor to participate in any activity that is illegal."

Section 2252A(d) allows the same affirmative defense as § 2252(c) to charges of knowing possession (i.e., to charges of violating § 2252A(a)(5)). In addition, the PROTECT Act amended § 2252A(c) to allow an affirmative defense to a charge of violating § 2252A(a)(1), (2), (3)(A), (4), or (5), that the material was produced using actual persons, each of whom was an adult; or the material was produced without using an actual minor. The affirmative defense is not available to a charge of violating § 2252A(a)(3)(B), or to prosecutions that involve child pornography under § 2256(8)(C), which is the portion of the definition of "child pornography" that covers images that were modified to make it appear that an identifiable minor is engaging in sexually explicit conduct. This portion was not struck down by Ashcroft and was not amended by the PROTECT Act.

Section 2252A(f), as added by § 510 of the PROTECT Act, authorizes civil actions by persons aggrieved by a violation of 18 U.S.C. § 2252A(a) or (b), or § 1466A.

Section 2252B

Misleading domain names on the Internet. Although this section, which was created by § 521 of the PROTECT Act, was placed in the child pornography statute, it concerns obscenity and "harmful to minors" material, and not child pornography, except to the extent that obscenity or "harmful to minors" material may also be child pornography. It makes it a crime knowingly to use a misleading domain name on the Internet with the intent to deceive a person into viewing material that is obscene, or with the intent to deceive a minor into viewing material that is "harmful to minors." It defines "harmful to minors" so as to parallel the Miller test for obscenity, as applied to minors.

Section 2252C

Misleading words or digital images on the Internet. This provision, which was enacted as P.L. 109-248 (2006), § 703, does not concern child pornography, except to the extent that it falls within the categories that the provision does cover, namely obscenity and material that is "harmful to minors." We note it here because it is codified among the child pornography statutes. It makes it a crime to knowingly embed words or digital images into the source code of a website with the intent to deceive a person into viewing material that constitutes obscenity, or with the intent to deceive a minor into viewing material that is "harmful to minors." It defines "harmful to minors as defines in section 2252B.

Section 2253

Criminal forfeiture. This section provides for criminal forfeiture in child pornography cases. Specifically, it provides that a person convicted of violating 18 U.S.C. §§ 2251, 2251A, 2252, 2252A, or 2260, shall forfeit to the United States (1) the child pornography involved in the violation, (2) property, real or personal, constituting or traceable to gross profits or other proceeds obtained from the offense, and (3) property, real or personal, used or intended to be used to commit or to promote the commission of the offense. P.L. 109-248 (2006), § 505(c), repealed subsections (b) through (o) of section 2253 and made "[s]ection 413 of the Controlled Substances Act (21 U.S.C. 853), with the exception of subsections (a) and (d)," applicable to the criminal forfeiture of property pursuant to section 2253.

Section 2254

Civil forfeiture. This section was amended by P.L. 109-248 (2006), § 505(d), to provide, in full: "Any property subject to forfeiture pursuant to section 2253 may be forfeited to the United States in a civil case in accordance with the procedures set forth in chapter 46 [18 U.S.C. §§ 981-986]."

Section 2255

Civil remedy for personal injuries. This section provides that a minor who suffers personal injury as the result of a violation of various laws, including §§ 2251, 2251A, 2252, 2252A, and 2260, may bring a civil action for actual damages (which shall be deemed to be at least $50,000) plus the cost of the suit, including a reasonable attorney's fee.

Section 2256

Definitions for chapter. This section defines terms used in 18 U.S.C. §§ 2251-2260. As amended by § 502 of the PROTECT Act, P.L. 108-21 (2003), it defines "sexually explicit conduct" (conduct in which one may not depict minors engaging) as "actual or simulated"—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person.

The PROTECT Act provided a separate definition of "sexually explicit conduct" for purposes of its use in part of the definition of "child pornography"; we discuss this under " PROTECT Act ," below.

Paragraph (v) (formerly paragraph (E)) was supplemented by § 2252 note, set forth in the discussion of the Knox case, above, which indicates that "lascivious exhibition" is not limited to nudity.

The Child Pornography Protection Act of 1996 (CPPA), P.L. 104-208 , 110 Stat. 3009-26, added a definition of "child pornography" to § 2256. The term, which is used in 18 U.S.C. § 2252A, includes visual depictions that do not portray an actual child. The definition was struck down in part by the Supreme Court in Ashcroft v. Free Speech Coalition , 535 U.S. 234 (2002), and then amended by the PROTECT Act, P.L. 108-21 (2003). In order to explain Ashcroft , we will first discuss the CPPA definition of "child pornography," before it was amended by the PROTECT Act. This definition provided:

"child pornography" means 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; or

(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.

The CPPA provided an affirmative defense (not applicable to charges of violating the knowing possession provision, § 2252A(a)(5)) that the alleged child pornography was produced using only adults, and that "the defendant did not advertise, promote, present, describe, or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor engaging in sexually explicit conduct." 18 U.S.C. § 2252A(c). For a defendant charged only with knowing possession of child pornography, there is, as noted above under " Section 2252A ," and unchanged by the PROTECT Act, an affirmative defense that the defendant (1) possessed fewer than three images of child pornography, and (2) promptly and in good faith destroyed or reported the images to a law enforcement agency. 18 U.S.C. § 2252A(d).

Ashcroft v. Free Speech Coalition

In Ashcroft v. Free Speech Coalition , 535 U.S. 234 (2002), the Supreme Court struck down paragraphs (B) and (D) of the definition of "child pornography" quoted above. Paragraphs (A), which covers images of actual children engaged in sexually explicit conduct, and paragraph (C), which covers images of actual children "morphed" to make it appear as if the children are engaged in sexually explicit conduct, were not in issue. Paragraphs (B) and (D), by contrast, cover pornography that was produced without the use of actual children.

In Ashcroft , the Supreme Court observed that statutes that prohibit child pornography that use real children are constitutional because they target "[t]he production of the work, not its content." 535 U.S. at 249; see also id . at 242. The CPPA, by contrast, targeted the content, not the means of production. "Virtual child pornography is not 'intrinsically related' to the sexual abuse of children, as were the materials in Ferber. " Id . at 250; see also id . at 249.

The government's rationales for the CPPA included that "[p]edophiles might use the materials to encourage children to participate in sexual activity" and might "whet their own sexual appetites" with it, "thereby increasing ... the sexual abuse and exploitation of actual children." Id . at 241. The Court found these rationales inadequate because "[t]he evil in question depends upon the actor's unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question.... The government 'cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.... The government may not prohibit speech because it increases the chance an unlawful act will be committed 'at some indefinite future time.' ... Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct." Id . at 253-254.

The government also argued that the existence of "virtual" child pornography "can make it harder to prosecute pornographers who do use real minors," because, "[a]s imaging technology improves..., it becomes more difficult to prove that a particular picture was produced using actual children." Id . at 242. "This analysis," the Court found, "turns the First Amendment upside down. The Government may not suppress lawful speech as a means to suppress unlawful speech.... '[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted....'" Id . at 255.

The Court also noted that, because child pornography, unlike obscenity, may include material with serious literary, artistic, political, or scientific value, it includes "[a]ny depiction of sexually explicit activity, no matter how it is presented.... The CPPA [therefore] applies to a picture in a psychology manual, as well as a movie depicting the horrors of sexual abuse.... [T]eenage sexual activity and the sexual abuse of children ... have inspired countless literary works." Id . at 247. The Court then noted that the CPPA would make it a crime to film Shakespeare's Romeo and Juliet in a manner that made it appear that the teenage lovers were engaging in sexually explicit conduct.

The majority opinion in Ashcroft was written by Justice Kennedy and joined by Justices Stevens, Souter, Ginsberg, and Breyer, with Justice Thomas concurring. Justice O'Connor concurred insofar as the decision struck down the prohibition of child pornography created with adults that look like children, but dissented insofar as it struck down the ban on virtual child pornography. Justices Rehnquist wrote a dissenting opinion joined by Justice Scalia, arguing that the CPPA should be construed to apply only to "computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct," and upheld as such. Id . at 268.

PROTECT Act

The PROTECT Act, P.L. 108-21 (2003), amended the definition of "child pornography" to provide:

"child pornography" means 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 a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that 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.

The PROTECT Act defines "sexually explicit conduct," for purposes of (B), as:

(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated; (I) bestiality; (II) masturbation; or (III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person.

The most significant change in the definition of "child pornography," from the CPPA to the PROTECT Act, as the term applies to material produced without the use of an actual minor, is that, instead of including any visual depiction that "is, or appears to be, of a minor engaging in sexually explicit conduct," it now includes only "a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct." The PROTECT Act defines "indistinguishable" to mean "virtually indistinguishable," and not to apply to "drawings, cartoons, sculptures, or paintings."

Nevertheless, the inclusion of "a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct" is apparently unconstitutional under Ashcroft , unless the PROTECT Act's expanded affirmative defense can save it. But whether it can seems questionable, because a defendant who "is not the producer of the work ... may have no way of establishing the identity, or even the existence, of the actors.... The statute, moreover, applies to work created before 1996, and the producers themselves may not have preserved the records necessary to meet the burden of proof." These aspects of the CPPA, which the Court in Ashcroft called "serious constitutional difficulties," were not changed by the PROTECT Act. The Court in Ashcroft did "not decide, however, whether the Government could impose this burden [of proving that his speech is not unlawful] on a speaker."

Section 504 of the PROTECT Act created 18 U.S.C. § 1466A, which makes it a crime knowingly to produce, distribute, receive, or possess, with or without intent to distribute, "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting," that depicts a minor engaging in sexually explicit conduct and is obscene or lacks serious literary, artistic, political, or scientific value. This provision applies whether an actual minor is used or not, but covers only depictions of minors engaged in specified sexual activities, and not in lascivious exhibition of the genitals or pubic area. Section 1466A allows the same affirmative defense to charges of knowing possession (without intent to distribute) that appears in 18 U.S.C. §§ 2252(c) and 2252A(d). It does not, however, allow the same affirmative defense that appears in § 2252A(c), that the material was produced using actual persons, each of whom was an adult; or the material was produced without using an actual minor. To the extent that § 1466A applies to non-obscene material produced without the use of an actual minor, it would apparently be unconstitutional under Ashcroft .

Section 2257

Recordkeeping requirements. This section was enacted in 1988, declared unconstitutional in 1989, amended in 1990 in order to restore it, amended again in 1994, 2003, and 2006 (by P.L. 109-248 , § 502). It currently provides:

Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which—

(1) contains any visual depiction made after November 1, 1990 [prior to the 1990 amendment this date was February 6, 1978] of actual sexually explicit conduct; and

(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

shall create and maintain individually identifiable records pertaining to every performer portrayed in such visual depiction.

Section 2257 also provides that these records must include the performer's name and date of birth, and must be made available to the Attorney General for inspection at all reasonable times. They may not be used directly or indirectly as evidence against any person with respect to any violation of law.

Section 2257A

Record keeping requirements for simulated sexual conduct. This section, added in 2006 by P.L. 109-248 , § 503, is essentially the same as § 2257 except that it applies only to "visual depictions of simulated sexual conduct."

Section 2258

Failure to report child abuse. This section, added in 1990 by P.L. 101-647 , § 226(g)(1), provides that a person who, while engaged in a specified professional capacity or activity on federal land or in a federally operated or contracted facility, learns of facts that give him or her reason to suspect child abuse, and fails to make a timely report of it, shall be guilty of a Class B misdemeanor. The specified professionals are those described in 42 U.S.C. § 13031(b), and include, among others, medical personnel, social workers, teachers, law enforcement personnel, foster parents, and commercial film and photo processors.

Section 2259

Mandatory restitution. This section requires courts to order a defendant convicted of a federal child pornography crime to pay to the victim the full amount of the victim's losses.

Section 2260

Production of sexually explicit depictions of a minor for importation into the United States . This section, added in 1994 by P.L. 103-322 , § 160001, makes it a crime for a person, outside the United States, to employ, use, persuade, induce, entice, or coerce any minor to engage in, or transport a minor with the intent that the minor engage in, any sexually explicit conduct, for the purpose of producing a visual depiction of such conduct for importation into the United States or into waters within twelve miles of the coast of the United States. It also makes it a crime for a person, outside the United States, knowingly to receive, transport, ship, distribute, sell, or possess with the intent to transport, ship, sell, or distribute any visual depiction of a minor engaging in sexually explicit conduct (if the product involved the use of a minor engaging in sexually explicit conduct), intending that the visual depiction be imported into the United States or into waters within twelve miles of the coast of the United States.

B. Children's Internet Protection Act (CIPA)34

The Children's Internet Protection Act (CIPA), P.L. 106-554 (2000), 114 Stat. 2763A-335, amended three federal statutes to provide that a school or library may not use funds it receives under these statutes to purchase computers used to access the Internet, or to pay the direct costs of accessing the Internet, and may not receive universal service discounts (other than for telecommunications services), unless the school or library enforces a policy "that includes the operation of a technology protection measure" that blocks or filters minors' Internet access to visual depictions that are obscene, child pornography, or harmful to minors; and that blocks or filters adults' Internet access to visual depictions that are obscene or child pornography.

The sections of CIPA (1711 and 1712) that require schools and libraries to block or filter if they use federal funds for computers or for Internet access, provide that the blocking or filtering technology may be disabled "to enable access for bona fide research or other lawful purpose." The section of CIPA (1721) that requires schools and libraries to block or filter if they receive universal service discounts, provides that the blocking or filtering technology may be disabled "during use by an adult, to enable access for bona fide research or other lawful purpose."

Sections 1711, 1712, and 1721 all contain identical definitions of "child pornography," which they define to have the meaning given such term in 18 U.S.C. § 2256, which is discussed above.

In United States v. American Library Association , a three-judge federal district court unanimously declared CIPA unconstitutional and enjoined its enforcement insofar as it applies to libraries. The government to appealed directly to the Supreme Court, which, on June 23, 2003, reversed the district court, finding CIPA constitutional. The plurality opinion acknowledged "the tendency of filtering software to 'overblock'—that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block." It found, however, that, "[a]ssuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled." The plurality also found that CIPA does not deny a benefit to libraries that do not agree to use filters; rather, the statute "simply insist[s] that public funds be spent for the purposes for which they were authorized."

C. Federal Racketeer Influenced and Corrupt Organizations Act (RICO)

In 1988, the Federal Racketeer Influenced and Corrupt Organizations Act (RICO), was amended by P.L. 100-690 , § 7514, to add the child pornography crimes specified in 18 U.S.C. §§ 2251, 2251A, 2252 to the definition of "racketeering activity" in 18 U.S.C. § 1961(1)(B). In 1994, RICO was amended by P.L. 103-322 , § 160001, to add the crimes specified in 18 U.S.C. § 2260 to the definition. RICO makes it a crime for any person employed by or associated with any "enterprise" engaged in or affecting interstate or foreign commerce to participate in the affairs of the enterprise "through a pattern of racketeering activity." 18 U.S.C. § 1962(c). A "pattern of racketeering activity" means at least two acts of racketeering activity within ten years (excluding any period of imprisonment). 18 U.S.C. § 1961(5). Thus, if a person engages in two such activities, which may include the child pornography offenses specified, he is subject to prosecution under RICO in addition to, or instead of, prosecution for the particular activities.

RICO also provides for criminal forfeiture (18 U.S.C. § 1963). In Fort Wayne Books, Inc. v. Indiana , 489 U.S. 46 (1989), the Supreme Court held that pretrial seizure, under the Indiana RICO statute, of books or other expressive materials, was unconstitutional. Although probable cause to believe that a person has committed a crime is sufficient to arrest him, "probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films." Id . at 66. This presumption of First Amendment protection "is not rebutted until the claimed justification for seizing books or other publications is properly established in an adversary proceeding." Id . at 67. The federal RICO statute, in any event, does not provide for pretrial seizure.

In Fort Wayne Books , the Court did, however, uphold the constitutionality of including obscenity violations among the predicate offenses under a RICO statute. The Court rejected the argument "that the potential punishments available under the RICO law are so severe that the statute lacks a 'necessary sensitivity to first amendment rights.'" Id . at 57. Further, the Court held that such obscenity violations need not be "affirmed convictions on successive dates ... in the same jurisdiction as that where the RICO charge is brought." Id . at 61.

The fact that the violations need not be affirmed convictions means that the obscenity violations may be proved as part of the RICO prosecution; no "warning shot" in the form of a prior conviction for obscenity is required. "As long as the standard of proof is the proper one with respect to all the elements of the RICO allegation—including proof, beyond a reasonable doubt, of the requisite number of constitutionally proscribable predicate acts—all of the relevant constitutional requirements have been met." Id .

There appears to be no reason why the principles the Court stated in Fort Wayne Books with respect to obscenity violations under RICO would not apply equally to child pornography violations.

In Alexander v. United States , 509 U.S. 544 (1993), the Supreme Court addressed a question it had left open in Fort Wayne Books : whether there are First Amendment limitations to RICO forfeitures of assets that consist of expressive materials that are otherwise protected by the First Amendment. The defendant in the case had been found guilty of selling four magazines and three videotapes that were obscene, and, on that basis, had been convicted under RICO. He was sentenced to six years in prison, fined $100,000, and ordered to pay the cost of prosecution, incarceration, and supervised release. He was also ordered to forfeit all his wholesale and retail businesses, including more than a dozen stores and theaters dealing in sexually explicit material, all the assets of these businesses (i.e., expressive materials, whether or not obscene), and almost $9 million. The government chose to destroy, rather than sell, the expressive material.

The Supreme Court rejected the argument that the forfeiture of expressive materials constitutes prior restraint, as the forfeiture order "does not forbid petitioner from engaging in any expressive activities in the future, nor does it require him to obtain prior approval for any expressive activities." Id . at 550-551 (emphasis in original). Consequently, the Court analyzed the forfeiture "under normal First Amendment standards," and could see no reason why, "if incarceration for six years and a fine of $100,000 are permissible forms of punishment under the RICO statute, the challenged forfeiture of certain assets directly related to petitioner's racketeering activity is not.... [T]he First Amendment does not prohibit either stringent criminal sanctions for obscenity offenses or forfeiture of expressive materials as punishment for criminal conduct." Id . at 554.

The Court did, however, remand the case to the court of appeals to decide whether the forfeiture constituted an "excessive fine" under the Eighth Amendment. The same day, in Austin v. United States , 509 U.S. 602 (1993), the Court held that the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property imposed by criminal statutes.

D. Money Laundering

The federal money laundering statute makes it a crime to, among other things, knowingly engage or attempt to engage in a monetary transaction in criminally derived property of a value greater than $10,000, if such property is derived from "specified unlawful activity." The Enhancing the Effective Prosecution of Child Pornography Act of 2007 (Title II of P.L. 110-358 ) amended the money laundering statute's definition of "specified unlawful activity" to include an offense under "section 2252A (relating to child pornography) where the child pornography contains a visual depiction of an actual minor engaging in sexually explicit conduct, [or] section 2260 (production of certain child pornography for importation into the United States)."

Recently Enacted Federal Legislation

The Sex Crimes Against Children Prevention Act of 1995, P.L. 104-71 , became law on December 23, 1995. It requires the United States Sentencing Commission to amend the sentencing guidelines to increase the penalties for offenses under 18 U.S.C. §§ 2251 and 2252 (which are discussed in this report), to increase the penalties under particular subdivisions of those sections if a computer was used to commit the crime, and to increase the penalty under 18 U.S.C. § 2423 (which prohibits transporting a minor in interstate or foreign commerce for the purpose of prostitution, and which is not discussed in this report). It would also require the Sentencing Commission, within 180 days after enactment of the bill, to submit a report to Congress concerning offenses involving child pornography and other sex offenses against children.

Section 508 of the Communications Decency Act of 1996 (CDA), which is Title V of the Telecommunications Act of 1996, P.L. 104-104 , amended 18 U.S.C. § 2422, which imposes up to five years' imprisonment on anyone who "knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce ... to engage in prostitution or in any sexual activity for which any person can be charged with a criminal offense" (and which is not discussed in this report). The 1996 amendment added a subsection imposing up to ten years' imprisonment on anyone who, "using any facility or means of interstate or foreign commerce ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years to engage in prostitution or any sexual act for which any person may be criminally prosecuted...."

The Child Pornography Prevention Act of 1996 (CPPA), P.L. 104-208 , 110 Stat. 3009-26, added 18 U.S.C. § 2252A and added a definition of "child pornography" to 18 U.S.C. § 2256. These provisions banned child pornography even when no actual minor was used to produce it. In Ashcroft v. Free Speech Coalition , 535 U.S. 234 (2002), the Supreme Court declared this provision unconstitutional to the extent that it prohibited pictures that were not produced with actual minors.

The Protection of Children From Sexual Predators Act of 1998, P.L. 105-314 , included some sections relating to child pornography. These amended 18 U.S.C. §§ 2252, 2252A, 2253, 2254, and 2255; these amendments are noted in this report in the summaries of these sections. In addition, P.L. 105-314 , § 604, added § 227 to the Victims of Child Abuse Act of 1990, 42 U.S.C. §§ 13001 et seq . Section 227(b)(1), 42 U.S.C. § 13032(b)(1), provides:

Whoever, while engaged in providing an electronic communication service [as defined at 18 U.S.C. § 2510] or a remote computing service [as defined at 18 U.S.C. § 2711] to the public, through a facility or means of interstate or foreign commerce, obtains knowledge of facts or circumstances from which a violation of section 2251, 2251A, 2252, 2252A, or 2260 of title 18, United States Code, involving child pornography (as defined in section 2256 of that title), or a violation of section 1466A of that title, is apparent, shall, as soon as reasonably possible, make a report of such facts or circumstances to the Cyber Tip Line at the National Center for Missing and Exploited Children, which shall forward that report to a law enforcement agency or agencies designated by the Attorney General.

The Attorney General's designations are published at 28 C.F.R. Part 81.

The Adam Walsh Child Protection and Safety Act of 2006, P.L. 109-248 , § 130 (2006) added 42 U.S.C. § 13032(g), which grants the National Center for Missing and Exploited Children, as well as its directors, officers, employees, or agents, immunity from civil or criminal liability arising from the performance of Cyber Tip Line responsibilities, except when the Center or any of the above individuals engages in intentional misconduct or reckless disregard to a substantial risk of causing injury without legal justification. Another provision of the Adam Walsh Act is noted below.

The Children's Internet Protection Act (CIPA), P.L. 106-554 (2000), amended three federal statutes to provide that a school or library may not use funds it receives under these statutes to purchase computers used to access the Internet, or to pay the direct costs of accessing the Internet, and may not receive universal service discounts, unless the school or library enforces a policy to block or filter minors' Internet access to visual depictions that are obscene, child pornography, or harmful to minors; and enforces a policy to block or filter adults' Internet access to visual depictions that are obscene or child pornography. Filters may be disabled, however, "for bona fide research or other lawful purpose." In 2003, the Supreme Court held CIPA constitutional.

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, or the PROTECT Act, P.L. 108-21 , amended 18 U.S.C. § 2252A to make prohibit any "digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct," even if no actual minor was used to produce the image. It also amended the affirmative defense in 18 U.S.C. § 2252A to prosecutions for child pornography crimes, and amended the definitions in 18 U.S.C. § 2256 of "sexually explicit conduct" and "child pornography." The PROTECT Act also created 18 U.S.C. § 1466A, which makes it a crime knowingly to produce, distribute, receive, or possess, with or without intent to distribute, "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting," that depicts a minor engaging in sexually explicit conduct and is obscene or lacks serious literary, artistic, political, or scientific value.

The Adam Walsh Child Protection and Safety Act of 2006, P.L. 109-248 , included several child pornography provisions, including section 502, which amended 18 U.S.C. § 2257, which requires by producers of material that depicts actual sexually explicit conduct to keep records of every performers' name and date of birth; and section 503, which enacted 18 U.S.C. § 2257A, which requires essentially the same thing with respect to simulated sexual conduct.

The Effective Child Pornography Prosecution Act of 2007 (Title I of P.L. 110-358 ) and the Enhancing the Effective Prosecution of Child Pornography Act of 2007 (Title II of P.L. 110-358 ) amended 18 U.S.C. §§ 2251, 2251A, 2252, and 2252A to apply to violations "affecting interstate or foreign commerce" even if they are not in interstate commerce, to apply to mailing, transporting, or shipping child pornography "using any means or facility of interstate or foreign commerce," and to apply not only to knowingly possessing child pornography but to knowingly accessing it with intent to view it. Title II also amended the money laundering provision, discussed above.