The Limits of Child Pornography

Although the First Amendment ordinarily protects the creation, distribution, and possession of visual images, the Supreme Court has declared that those protections do not apply to child pornography. But the Court has failed to clearly define child pornography as a category of speech. Providing a precise definition of the child pornography exception to the First Amendment has become increasingly important because recent years have seen a dramatic increase in the penalties associated with the creation, distribution, and possession of child pornography. This Article proposes a clear definition of the child pornography exception. It argues that an image ought to fall within the exception only if a child was sexually exploited or abused in the creation of the image. That the circulation of an image might inflict privacy or reputational harm on the minor depicted should be insufficient to categorize that image as child pornography for constitutional purposes. This proposed definition would place concrete limits on child pornography prosecutions; it would also prevent prosecution in many cases in which the minor depicted is above the age of consent, the image was created through computer morphing, or the image is the result of surreptitious filming or photographing of a minor.