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[*Page 234 continued]
In this Part, I will describe the birth and growth of child pornography law. As will be evident, the course of the law's evolution closely tracks the cultural crisis charted in Part I. I do not present here an analysis of the legal implications of these doctrinal developments, nor do I discuss their legitimacy or wisdom. (I consider these questions in a separate article.) [149]
Rather, I tell the story of the historical development of the law
in order to illustrate its chronological correlation with the cultural story
recounted above. I trace two different themes in this history: the expansion of
the rationale for banning child pornography, and the widening definition of the
term.
One peculiar aspect of child pornography law is that the doctrinal category has evolved with the Supreme Court in a strangely passive pose:
[*235]
Rather than attempting to define child pornography itself, the
Court's cases have simply upheld statutory definitions. This is in stark
contrast to the law of obscenity, for example, where the Court struggled to
create the precise constitutional definition of the category and thereby to set
a clear boundary beyond which states could not go.
[150]
With Congress and states pushing further and further for limits on child pornography, this lack of a clear boundary - indeed the suggestion of some Justices that they would entertain even broader definitions of child pornography than current ones [153] - has made the Court's work seem like an invitation to statutory expansion. As legislatures expand the scope of child pornography law, as prosecutors rush to vigorously enforce these laws to their limits, the response of the courts, to much of this, has been acceptance. There is a sense of boundlessness in child pornography law.