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INTRODUCTION  

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 But most of us carry in our hearts the Jocasta who begs Oedipus for God's sake not to enquire further.

—letter of Schopenhauer to Goethe, Nov. 11, 1815 [1]

In truth, when it comes to child pornography, any discussion of censorship is a sham, typical of the sleight of hand used by organized pedophiles as part of their ongoing attempt to raise their sexual predations to the level of civil rights. [3]

 In spite of such attacks, in this Article I raise questions about the censorship imposed by child pornography laws. I argue that these laws, intended to protect children from sexual exploitation, threaten to reinforce the very problem they attack. The legal tool that we designed to liberate children from sexual abuse threatens to enslave us all, by constructing a world in which we are enthralled - anguished, enticed, bombarded - by the spectacle of the sexual child.

 Child pornography law is a remarkably recent invention. Not until 1982 did the Supreme Court consider the distinct problem of child pornography, create it as a special category of constitutional inquiry, and expel it from the protection of the First Amendment. [4]  Since its conception, legal scholars have largely ignored it as an area of inquiry. [5]  Unlike  the burgeoning academic

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discourse that has grown up around obscenity law and adult pornography, the law of child pornography has been left alone to occupy its own peculiar and unpleasant realm.  

Yet, left to its own devices, child pornography has spawned an extraordinary and troubling body of case law. [6] As legal scholars occupy themselves with more tasteful topics - and ones that may appear to present more serious challenges to free speech jurisprudence - the law of child pornography has undergone a significant expansion, largely unchecked by critical inquiry. From its relatively recent birth, the law of child pornography has come into adulthood,[7] and an ungainly creature it is.  

The dramatic expansion of child pornography law has not occurred in a vacuum. Rather, it has been caught up in a cultural maelstrom. As I document below, since the late 1970s, the problem of child sexual abuse has been "discovered" as a malignant cultural secret, wrenched out of its silent hiding place, and elevated to the level of a "national emergency." [8] At the center of this dark secret lurks child pornography, constituting both a hideous product - and some would say cause - of child molestation. [9]      

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corresponding events. On the one hand, we have the "discovery" in the late 1970s of the twin problems of child sexual abuse and child pornography, and the continuation of the problems to the point where they have reached the level of an ongoing, "ever-widening" crisis. [10] On the other hand, we have child pornography law. Born in the same period, created to solve the problem of child sexual abuse, child pornography law too has grown dramatically in the past two decades, expanding and proliferating along with the underlying problem that it targets. Yet, curiously, the law's expansion has not solved the problem, but only presided over its escalation. As child pornography law has expanded since the late 1970s, so has a "culture of child abuse," [11] a growing "panic" [12] about the threat to children.  

What, if any, is the relationship between these two concurrent phenomena - the expansion of child pornography law and the growing problem of child sexual abuse, including child pornography? Does their correlative temporal connection allow us to draw any conclusions about a possible causal relationship?  

There is a standard, conventional explanation for this correlation. This account casts law in a reactive stance: As the sexual exploitation of children, or at least our awareness of the problem, [13] has risen, legislatures and courts have responded by passing and upholding tougher child pornography laws. As the crisis has surged, so has the law. In this view, cultural horror drives law to play a game of catch-up. Law is always a step behind the problem, racing to keep pace with a burgeoning social crisis.  

I am sure that is at least part of what is going on. But in this Article, I propose two alternative readings - readings that do not exclude the conventional account described above, but supplement it.

In the first reading, I explore the possibility that certain sexual prohibitions invite their own violation by increasing the sexual allure of what they forbid. I suggest that child pornography law and the eroticization of children exist in a dialectic of transgression and taboo: The dramatic expansion of child pornography law may have unwittingly heightened pedophilic desire.  

I then turn to a second reading, which reveals the previous one to be an only partially satisfactory account. In the second reading, I view law and the culture it regulates not as dialectical opposites, but as intermingled. Child pornography law may represent only another symptom of and not a solution to the problem of child abuse or the cultural fascination with sexual children. The cross purposes of law and culture that I describe above (law as prohibition, which both halts and incites desire)

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may mask a deeper harmony between them: The legal discourse on prohibiting child pornography may represent yet another way in which our culture drenches itself in sexualized children.

 Child pornography law explicitly requires us to take on the gaze of the pedophile in order to root out pictures of children that harbor secret pedophilic appeal.[14]

The growth of child pornography law has opened up a whole arena for the elaborate exploration of children as sexual creatures. Cases require courts to engage in long, detailed analyses of the "sexual coyness" or playfulness of children, and of their potential to arouse. [15] Courts have undertaken Talmudic discussions of the meaning of "pubic area" and "discernibility" of a child's genitals in a picture at issue. [16] But even when a child is pictured as a sexual victim rather than a sexual siren, the child is still pictured as sexual. Child pornography law becomes in this view a vast realm of discourse in which the image of the child as sexual is preserved and multiplied.  

The point of this Article is that laws regulating child pornography may produce perverse, unintended consequences and that the legal battle we are waging may have unrecognized costs. [17] I do not doubt, however, that child pornography law has substantial social benefits. In fact, I do not doubt that these benefits might outweigh the costs detailed. I nonetheless focus on these costs as a means to unsettle the confident assumption of most courts, legislators, and academics that the current approach to child pornography law is unequivocally sound. I question their conviction that the more regulation we impose the more harm we avert.[18] Ultimately, I raise questions about the nature of censorship itself.  

First, I establish that child pornography is a subset of the larger problem of child

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sexual abuse and that the two are inextricable.

Second, I argue that our culture has become preoccupied with child sexual abuse and child pornography in a way that it did not used to be. The preoccupation is only a recent phenomenon, the product of a dramatic shift in the way we view children.

In Part II, I trace the historical development of the law of child pornography. Here I outline how the cultural transformation in our notion of childhood sexual vulnerability has coincided with the birth and dramatic expansion of the law.  

In Part III, I explore the first of two causal accounts of the chronological correlation between the regulation of child pornography and the increase in the crisis of child sexual abuse. I present the argument that the burgeoning law of child pornography may invite its own violation.  

In Part IV, I present the final reading of the relationship between child pornography law and culture: The law may perpetuate and escalate the sexual representation of children that it seeks to constrain.  

In a sense, even to ask the questions I raise in this Article is to open a Pandora's Box. Ultimately, they challenge deeply held assumptions about the  nature of censorship, and about the relationship between law and the culture it  regulates. Not only do these questions suggest the possibility that some kinds  of rules are inevitably counterproductive, but the questions also place law in a  different light, as an institution that actively creates sexual culture rather than an institution that merely responds to it.  

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