Child Porn and the First Amendment

Opinions & Commentaries

The owner of a bookstore in Manhattan was convicted of promoting a sexual performance of a child by selling two sexually explicit films involving young boys to undercover police officers. New York argued this was in violation of a state criminal statute that prohibits knowingly promoting sexual performances by children under 16 by distributing material which depicts such performances. It also prohibits such materials that are produced out of state.

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The Child Pornography Prevention Act of 1996 prohibited “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” This includes visuals that seem to depict children but are virtually constructed or use adult actors. The statute was successfully challenged for being overbroad and vague by The Free Speech Coalition, a trade association for the adult entertainment industry.

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In 2004, a special agent entered an internet chat room to combat online child exploitation. The agent, under an alias, engaged in a private chat with Michael Williams and exchanged photos with him. Williams shared a hyperlink with the agent that contained several images of minors engaged in sexually explicit conduct. Williams was arrested and charged with violations of the PROTECT Act, including the pandering of “material or purported material in a manner that reflects the belief, or that is intended to cause another to believe” that the material is illegal child pornography. Williams filed a motion to dismiss the charges as unconstitutionally overbroad and vague. The Eleventh Circuit agreed with Williams and struck down the pandering portion of the PROTECT Act as unconstitutionally overbroad and vague.

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