Child Pornography: Constitutional Principles and Federal Statutes

Publication Date: October 2003

Publisher: Library of Congress. Congressional Research Service

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Research Area: Law and ethics

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Abstract:

The First Amendment provides: "Congress shall make no law . . . abridging the freedom of speech, or of the press." Although the First Amendment, in general, protects pornography, the Supreme Court has held that it does not protect two types of pornography: obscenity and child pornography. Consequently, the government may, and has, banned them.

Child pornography is material that visually depicts sexual conduct by children, and is unprotected by the First Amendment even when it is not legally obscene. Federal statutes, in addition to making it a crime to transport or receive child pornography in interstate or foreign commerce, prohibit, among other things, the use of a minor in producing pornography, and provide for criminal and civil forfeiture of real and personal property used in making child pornography, and of the profits of child pornography. In addition, child pornography crimes are included among the predicate offenses that may give rise to a violation of the Federal Racketeer Influenced and Corrupt Organizations Act.

The Child Pornography Prevention Act of 1996, P.L. 104-208, 110 Stat. 300926, added a definition of "child pornography" that include visual depictions of what appears to be a minor engaging in explicit sexual conduct, even if no actual minor was used in producing the depiction. In Ashcroft v. Free Speech Coalition (2002), the Supreme Court held this provision unconstitutional to the extent that it prohibited pictures that were not produced with actual minors. In response to Ashcroft, Congress enacted the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, or the PROTECT Act, Public Law 10821, which would again ban some non-obscene child pornography that was produced without an actual minor.

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." On June 23, 2003, the Supreme Court held CIPA constitutional.