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[*236]
Congress passed its first child pornography legislation, the Protection of Children Against Sexual Exploitation Act, in 1978, just a year after the news media discovered the crisis of child pornography. [154]
The
drafters of that Act assumed that they were constrained by obscenity law
standards in their approach to the
problem of child pornography. The Act, therefore, did not exceed the
bounds of existing obscenity standards as articulated by the Supreme
Court in Miller v. California.
[155] It outlawed the use of children in the production of obscene materials. It
also enhanced the penalties for transmission or receipt of obscene materials
that contained depictions of children. [156] Congress, however, rejected any measures that would have exceeded
the scope of existing obscenity laws. [157] The 1982 Ferber case removed that barrier.
In New York v. Ferber,
[158] a unanimous Supreme Court (extremely rare in First Amendment cases)
created a previously unknown exception to the First Amendment, proclaiming that
"child pornography" was a new category of speech without
constitutional protection. [159] The Ferber Court encountered a novel First Amendment problem:
Whether non-obscene
[160] sexual depictions of children - speech not falling into any previously
defined First Amendment exception - could be constitutionally restricted. The
Court's answer was yes.
[*237]
In response to Ferber, Congress quickly passed legislation modeled on the New York statute upheld in that case. The result was the Child Protection Act of 1984. [161] The Act changed the meaning of "sexual conduct" to include certain non-obscene pictures of children. The Act also raised the age of "children" for purposes of the law from sixteen to eighteen, thereby vastly extending the universe of "child pornography." [162] Convictions rose dramatically under the revised law. Under the 1977 law only twenty-three defendants were convicted during the seven years it was in effect (all of those violations were for the distribution rather than the production of child pornography). [163] In contrast, at least 214 defendants were convicted in the twenty-eight months following the enactment of the 1984 law. [164]
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