Child pornography laws in the United States
Child pornography laws in the United States specify that child pornography is illegal under federal law and in all states. The Supreme Court of the United States has found child pornography to be "legally obscene", a term that refers to offensive or violent forms of pornography that have been declared to be outside the protections of the First Amendment to the United States Constitution. Federal sentencing guidelines regarding child pornography differentiate between production, distribution, and purchasing / receiving, and also include variations in severity based on the age of the child involved in the materials, with significant increases in penalties when the offense involves a prepubescent child or a child under the age of 12. US law distinguishes between pornographic images of an actual minor, realistic images that are not of an actual minor, and non-realistic images such as drawings. The latter two categories are legally protected unless found to be obscene, whereas the first does not require a finding of obscenity.
Obscenity as a form of unprotected speech
In the United States, pornography is considered a form of personal expression governed by the First Amendment to the United States Constitution. Pornography is generally protected speech, unless it is obscene, as the Supreme Court of the United States held in 1973 in Miller v. California.
Child pornography is also not protected by the First Amendment, but importantly, for different reasons. In 1982 the Supreme Court held in New York v. Ferber that child pornography, even if not obscene, is not protected speech. The court gave a number of justifications why child pornography should not be protected, including that the government has a compelling interest in safeguarding the physical and psychological well being of minors.
The initial iteration of 18 U.S.C. § 2257, first passed in 1988, mandated that producers of pornographic media keep records of the age and identity of performers and affix statements as to the location of the records to depictions. However, rather than penalties for noncompliance, the statute created a rebuttable presumption that the performer was a minor. Pub. L. 100-690. This version was struck down as unconstitutional under the First Amendment in American Library Association v. Thornburgh, 713 F. Supp. 469 (D.D.C. 1989), vacated as moot, 956 F.2d 1178 (D.C. Cir. 1992).
After Thornburgh, Congress amended 2257 to impose direct criminal penalties for noncompliance with the record-keeping requirements. The same plaintiffs challenged the amended statute and accommanying regulations, but the new version was upheld in American Library Ass'n v. Reno, 33 F.3d 78 (D.C. Cir. 1994).
In Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." 18 U.S.C. § 2257(h)(3).
However, after 2257 was amended in 2006 by the Adam Walsh Act, the court ruled that Sundance's restrictions no longer applied to the amended statute and generally ruled in the government's favor on its motion for summary judgment. Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2006).
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Simulated child pornography was made illegal with the Child Pornography Prevention Act of 1996 (CPPA). The CPPA was short-lived. In 2002, the Supreme Court of the United States in Ashcroft v. Free Speech Coalition held that the relevant portions of the CPPA were unconstitutional because they prevented lawful speech. Referring to Ferber, the court stated that "the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not 'intrinsically related' to the sexual abuse of children."
1466A - Obscene visual representations of the sexual abuse of children
The law enacted 18 U.S.C. § 1466A, which criminalizes material that has "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 "depicts an image that is, or appears to be, of a minor engaging in ... sexual intercourse ... and lacks serious literary, artistic, political, or scientific value". By its own terms, the law does not make all simulated child pornography illegal, only that found to be obscene or lacking in serious value.
In Richmond, Virginia, on November 2005, Dwight Whorley was convicted under 18 U.S.C. sec. 1466A for using a Virginia Employment Commission computer to receive "obscene Japanese anime cartoons that graphically depicted prepubescent female children being forced to engage in genital-genital and oral-genital intercourse with adult males." He was also convicted of possessing child pornography involving real children. He was sentenced to 20 years in prison.
On December 18, 2008 the Fourth Circuit Court of Appeals affirmed the conviction. The court stated that "it is not a required element of any offense under this section that the minor depicted actually exists." Attorneys for Mr. Whorley have said that they will appeal to the Supreme Court.
The request for en banc rehearing of United States v. Whorley from the Court of Appeals was denied on June 15, 2009. A petition for writ of certiorari was filed with the Supreme Court on September 14, 2009 and denied on January 11, 2010 without comment.
The PROTECT Act also amended 18 U.S.C. § 2252A, which was part of the original CPPA. The amendment added paragraph (a)(3), which criminalizes knowingly advertising or distributing "an obscene visual depiction of a minor engaging in sexually explicit conduct; or a visual depiction of an actual minor engaging in sexually explicit conduct." The law draws a distinction between obscene depiction of any minor, and mere depiction of an actual minor.
The bill addresses various aspects of child abuse, prohibiting some illustrations and computer-generated images depicting children in a pornographic manner. Provisions against virtual child pornography in the Child Pornography Prevention Act of 1996 were ruled unconstitutional by the U.S. Supreme Court in 2002 on the grounds that the restrictions on speech were not justified by a compelling government interest (such as protecting real children). The provisions of the PROTECT Act instead prohibit such material if it qualifies as obscene as defined by the Miller Test; the Supreme Court has ruled that such material is not protected by the First Amendment.
In May 2008, the Supreme Court upheld the 2003 federal law Section 2252A(a)(3)(B) of Title 18, United States Code that criminalizes the pandering and solicitation of child pornography, in a 7-to-2 ruling penned by Justice Antonin Scalia. The court ruling dismissed the United States Court of Appeals for the 11th Circuit's finding the law unconstitutionally vague. Attorney James R. Marsh, founder of the Children's Law Center in Washington, DC, wrote that although the Supreme Court's decision has been criticized by some, he believes it correctly enables legal personnel to fight crime networks where child pornography is made and sold. Child pornography is illegal in the US and is not looked at in terms of the typical guidelines of the First Amendment, due to the assumption that it always harms children when it is made, sold, and/or owned.
In 1994, the U.S. Court of Appeals for the 3rd Circuit ruled that the federal statute contains no requirement that genitals be visible or discernible. The court ruled that non-nude visual depictions can qualify as lascivious exhibitions and that this construction does not render the statute unconstitutionally overbroad.
In October 2008, the Comic Book Legal Defense Fund became involved in a case defending 38-year-old Iowa comic collector named Christopher Handley, with Eric Chase of its United Defense Group providing his legal defense.[dead link] Chase argued, "there are no actual children. It was all very crude images from a comic book." This is related to obscenity charges involving pornography depicting minors, being applied to a fictional comic book. On this, Chase said, "This prosecution has profound implications in limiting the First Amendment for art and artists, and comics in particular that are on the cutting edge of creativity. It misunderstands the nature of avant-garde art in its historical perspective and is a perversion of anti-obscenity laws." Charles Brownstein of the CBLDF commented, "The government is prosecuting a private collector for the possession of art, in the past, CBLDF has had to defend the First Amendment rights of retailers and artists, but never before have we experienced the federal government attempting to strip a citizen of his freedom because he owned comic books."
Judge Gritzner was petitioned to drop some of the charges, but instead ruled that 2 parts of the PROTECT Act criminalizing "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting" were unconstitutional. Handley still faces an obscenity charge. The motion was initially heard on June 24, 2008, but was not widely publicized prior to the Fund's involvement. CBLDF leader Neil Gaiman remarked on how this could apply to his work The Doll's House, saying, "if you bought that comic, you could be arrested for it? That’s just deeply wrong. Nobody was hurt. The only thing that was hurt were ideas." He then initiated a perfume sales campaign to raise funds for Handley's legal defense.
Handley was convicted in May 2009 as the result of entering a guilty plea bargain at the recommendation of Chase, under the belief that the jury chosen to judge him would not acquit him of the obscenity charges if they were shown the images of question.
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- 20 Years for Loli Manga
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- Manga Collection Ruled "Child Pornography" By US Court May 28, 2009