Pornography: The Legal Background

On June 7, 1995, at the beginning of the Internet age, addressing a group of Congressional and community leaders and media representatives at Enough Is Enough®’s  Leadership Luncheon, Donna Rice Hughes said the following:

It’s my job during the next ten minutes to dispel some popular misconceptions about pornography and expose you to the realty of this issue we face. Unfortunately, the worst and most deviant forms of illegal pornography have invaded our homes, offices and schools via the computer. Computers have emerged as the leading-edge technology for the distribution of hard-core and child pornography. This is due to the low risk of law enforcement detection, the speed of transmission and the ease of access for both children and adults. In fact, the Internet has become a central means of distributing child pornography, worldwide. Children today are increasingly computer literate, in most cases, much more so than their parents. Any child with a computer and a modem can access pornographic material in seconds, and once they’ve seen it, it can’t be erased from their minds. Just as disturbing is the fact that we cannot protect ourselves or our children from those who derive sexual pleasure from viewing this toxic material.[1]

This event helped to shine a light on this important issue and served as the catalyst for the Communications Decency Act of 1996 (CDA), which received bipartisan support and was signed into law by President Clinton. The CDA extended to the cyberworld the same legal protections provided to children against pornography and sexual predators in the physical world.[2] The CDA presented an enormous opportunity to get ahead of the curve of the sexual exploitation of children through the Internet. However, as soon as the ink was dry on the bill, the indecency provisions were challenged by the ACLU and other groups in court, and a federal judge entered an injunction preventing those provisions from being implemented.

Perhaps, a little history is in order. Savvy groups such as the ACLU have successfully framed all pornography as protected speech. This author fully supports the First Amendment as one of the foundational cornerstones of the Constitution. As such, not all written or visual material is protected under the First Amendment. 

Justice Potter Stewart infamous “I’ll know it when I see it”[3] statement notwithstanding, the United States Supreme Court has ruled that there are four categories of pornography that may not be entitled to full First Amendment protection and which can be restricted or proscribed altogether:  indecent material, material harmful to minors, obscene material, and child pornography, more fully described below.[4]

  1. Indecent material includes messages or pictures on telephone, radio, or broadcast TV that are patently offensive descriptions or depictions of sexual or excretory organs or activities. Indecency laws are designed to protect minor children (children under the age of 18) from such material without infringing on the First Amendment rights of adults.
  2. Material harmful to minors (HTM) represents nudity or sex that has prurient appeal for minors, is offensive and unsuitable for minors, and lacks serious value for minors. Every state has “harmful to minors” laws designed to protect children from exposure to adult pornography in print and video. These laws prevent minor age children from being able to purchase or view a Playboy or Penthouse magazine or other forms of so-called soft-core pornography. (Note: While it is legal to distribute indecent and HTM materials to adults, it is illegal when knowingly sold or exhibited to minors in the physical world.) 

Unfortunately, there is currently no federal indecency or harmful to minors statute that applies to the Internet.[5]


3. Obscene material is graphic “hard-core pornography” that focuses on sex and/or sexual violence, including close-ups of sex acts, lewd exhibition of the genitals, and deviant activities such as group sex, bestiality, torture, incest, and excretory functions. While Congress amended the federal obscenity laws in the 1996 CDA to criminalize distribution of obscene content on the Internet, these laws have not been vigorously enforced. As a result, obscene material has become so pervasive on the Internet that most Americans do not know that it is prosecutable.

4. Child pornography[6] (child sex abuse images) is material that visually depicts minor children under the age of 18 engaged in actual or simulated sexual activity, including lewd exhibition of the genitals. It is illegal to produce, distribute, or possess child pornography in the United States. Although substantially undermanned and underfunded, the Justice Department and FBI have focused their enforcement efforts almost exclusively on violations of child pornography and child stalking laws. Despite these efforts, child pornography is one of the fastest growing industries on the Internet. There has been a 774% increase in the number of child pornography images and videos reviewed through the National Center for Missing and Exploited Children’s Child Victim Identification Program from 2005 (1.98 million images/videos) to 2011 (17.3 million images/videos)[7] Most victims of child pornography are prepubescent with a growing trend towards depicting younger children, including, horrifyingly, infants.[8] It is ALWAYS illegal to produce, distribute, or possess child pornography in the United States.

Due to the failure of the Supreme Court to uphold COPA, the failure of the Justice Department, and other law enforcement agencies to pursue violations of obscenity laws and to adequately resource child pornography investigations and prosecutions, young people today have free, easy, and anonymous access to all types of pornography, harmful to minors “adult” pornography, hard-core obscenity, and child pornography.

 

8Donna Rice Hughes, “ Review of Dangers on the Internet” (speech, EIE Leadership Luncheon, Senate Russell Caucus Room, Capitol Hill, Washington, DC, June 7, 1995). See also  http://protectkids.com/ donnaricehughes/ EIElunch060795.htm.

9Specifically, the Communication Decency Act (CDA) of 1996 amended the federal obscenity laws to apply to the Internet and extended the broadcast indecency law to Internet platforms. It also contained a child stalking provision that makes it a crime to use the Internet to engage minor children in prostitution or any sexual act.

[3]Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964), regarding possible obscenity in Les Amants [The Lovers].  This 1958 French drama film, starring Jeanne Moreau, Alain Cuny, and Jean-Marc Bory, was written by Louis Malle.

[4]Donna Rice Hughes and Pamela Campbell, Kids Online: Protecting Your Children in Cyberspace (Grand Rapids, MI: Revell, 1998), 55-57; Internet Safety 101® Workbook/Resource Guide (2009), 32-33; http://www.internetsafety101.org/whatispornography.htm.

[5]In 1997, in Reno v. ACLU, the Supreme Court invalidated the indecency provisions of the Communications Decency Act of 1996, which were designed to restrict children’s access to “indecent” material online. In response to this decision, Congress passed The Children’s Online Protection Act of 1998 (COPA)[5] which mandated that U.S.-based commercial pornographers require adult verification or use of a credit card by individuals seeking access to their websites. COPA was held up in the Federal courts for eleven years, bouncing between the third circuit federal court and the U.S. Supreme Court. The intent of this “brown cyber-wrapper” was to keep minor children from having access to pornographic websites, specifically the free ‘teaser’ images and videos. However, in 2009, the Supreme Court let stand a lower appellate court ruling invalidating COPA.

[6]This article will not examine the negative impact of child pornography on young people.

[7]NCMEC data illustrate the explosion. Child Victim Identification Program (CVIP), 2005 - reviewed 1.98 million child pornography images and videos. 2008 - 8.6 million, a four fold increase in three years. 2010 - 13.6 million, 2011- 17.3 million.

[8] Ernie Allen, email exchange with this author, June 9, 2014. Allen is President of ICMEC (International Center for Missing and Exploited Children) and former CEO & President of NCMEC (National Center for Missing and Exploited Children). There are two qualifiers: (1) these are only the “identified” children and (2) they are only the children whose images made it into NCMEC’s CVIP. NCMEC has reviewed 104 million images since they launched CVIP in 2002.

Federal Advocacy and  Public Policy efforts aimed at preventing the sexual exploitation of  children online.

  •  Dot Kids Name Act of 2001
     
  • Children's Internet Protection Act of 2000 (CIPA)
    CIPA requires public schools and libraries receiving federal e-rate funds to use a portion of those funds to filter their Internet access. They must filter out obscenity on library computer terminals used by adults and both obscenity and harmful-to-minors materials on terminals used by minor children.  https://www.fcc.gov/consumers/guides/childrens-internet-protection-ac
  • Child Online Protection Act of 1998 (COPA)
    COPA makes it a crime for commercial websites to make pornographic material that is "harmful to minors" available to juveniles. The purpose of COPA is to protect children from instant access to pornographic "teaser images" on porn syndicate Web pages. This much needed legislation requires pornographers to take a credit card number, adult verification number, or access code to restrict children's access to pornographic pictures, and allow access to consenting adults.

    The ACLU challenged the constitutionality of COPA in federal court. The United States Supreme Court heard oral arguments on COPA on November 28, 2001 to decide whether the Act is constitutional.
    COPA Statute. More on COPA:

    The COPA Commission, a congressionally appointed panel, was mandated by the Child Online Protection Act, which was approved by Congress in October 1998. The primary purpose of the Commission is to "identify technological or other methods that will help reduce access by minors to material that is harmful to minors on the Internet."

    The Commission released its final report to Congress on Friday, October 20, 2000.

    The Report advised Congress that it could take steps to protect children online, by dedicating more resources to the prosecution of Internet obscenity and child pornography. The Report also identified a number of technologies that may satisfy the affirmative defense requirements of the Act. One of the suggestions supported by all members of the Commission was the recommendation to educate America's parents about what measures are available for protecting children online.
     
  •  Child Protection and Sexual Predator Punishment Act of 1998
    This law increases protections for children from sexual predators. This Act has two central provisions: The first requires Internet Service Providers (ISPs) to report evidence of child pornography and abuse violations to law enforcement, and the second establishes a "zero-tolerance" policy toward the possession of child pornography. The possession law allows prosecution for illegal possession of even one item of child pornography.
     
  •  Child Pornography Prevention Act of 1996 (CPPA)

    CPPA was enacted to close a loophole in the nation's child pornography laws. The loophole would have allowed pedophiles to use new technologies to create computer generated child pornography, which could have been legal to possess, distribute, and produce, if the government could not identify or prove that the child depicted in the pornography was an actual child.

    CPPA supporters argue that both real and computer generated images of child pornography are used in the commission of child sexual molestation and are equally inciting to pedophiles and seductive to child victims.

    Since its enactment in 1996, CPPA has been challenged in federal court by the pornography industry and the ACLU. The United States Supreme Court heard oral arguments on October 30, 2001 and ultimately did not uphold the law passed by Congress.  More on CPPA.
     
  • Communications Decency Act of 1996 (CDA)
    CDA was the first legislative effort to protect children from pornography on the Internet. Although the United States Supreme Court struck the indecency provisions of the CDA in ACLU v. Reno, the obscenity amendments survived - an important victory for the protection of children and families online.
     
  • Legal organizations who fight for the protection of children from the dangers of pornography and sexual predators: