[165] Justice Brennan chose this term to describe the majority's motivations in Osborne v. Ohio, 495 U.S. 103, 143 (1990) (Brennan, J., dissenting).  

[166] New York v. Ferber, 458 U.S. 747, 751 (1982) (quoting N.Y. Penal Law 263.00(1), 263.00(3), 263.00(4) (McKinney 1980)). Current federal law has codified the definition as follows: 

(2) "sexually explicit conduct" means actual or simulated -

(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(B) bestiality;

(C) masturbation;

(D) sadistic or masochistic abuse; or

(E) lascivious exhibition of the genitals or pubic area of any person.

 18 U.S.C. 2256(2)(A)-(E) (1994).  

[167] Child Protection Act of 1984, Pub. L. No. 98-292, 5, 98 Stat. 204, 205(codified as amended at 18 U.S.C. 2253 (1994)) (redesignated 2255 and subsequently renamed 2256).
This was supposedly in order to emphasize the distinction between child pornography law and obscenity law, with which the term "lewd" is often associated. See United States v. Dost, 636 F. Supp. 828, 830-32 (S.D. Cal. 1986) (discussing the Act).  

[168] Throughout, I use terms like "innocuous" or "innocent" to refer to pictures that are not child pornography.
But one point of this Article is to expose and then analyze the very difficulty of distinguishing the innocent and innocuous photograph from "real" child pornography.
These terms should therefore be read as placeholders for contested meaning. See Amy Adler, What's Left?: Hate Speech, Pornography, and the Problem for Artistic Expression, 84 Cal. L. Rev. 1499, 1506-08 (1996) [hereinafter Adler, What's Left].

The Supreme Court has used these terms to distinguish protected depictions of children from child pornography. See, e.g., Osborne v. Ohio, 495 U.S. 103, 113-14 (1990) (discussing the distinction between child pornography and "innocuous" photographs).  

[169] See 491 U.S. 576, 588-90 (1989) (Scalia and Blackmun, J.J., concurring).
This move, like the move to criminalize a range of depictions of nudity in the Osborne case, described infra notes 191-195 and accompanying text, is particularly striking, given that the Court has repeatedly noted in its speech cases that depictions of nudity are protected under the First Amendment:

" 'Nudity alone' does not place otherwise protected material outside the mantle of the First Amendment." Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981) (quoting Jenkins v. Georgia, 418 U.S. 153, 161 (1974)).

This is supposedly so even in child pornography law.
Indeed, the Ferber opinion repeated the Court's mantra that "nudity[ ] without more is protected expression." Ferber, 458 U.S. at 765 n.18 (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975));
see also

United States v. X-Citement Video, Inc., 513 U.S. 64, 84 (1994) (Scalia, J., dissenting) (distinguishing nudity from "sexually explicit conduct");

Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33 (1975) (invalidating ordinance that would prohibit any female from appearing in any public place with uncovered breasts);

Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14 (1975) (striking down ban on nudity in drive-in movies even when nudity was visible to passers-by).

[170] 495 U.S. at 113 (quoting State v. Young, 525 N.E.2d 1363, 1368 (Ohio 1988)).  

[171] Id. at 138 (Brennan, J., dissenting).  

[172] 32 F.3d 733, 747 (3d Cir. 1994); accord United States v. Horn, 187 F.3d 781, 790 (8th Cir. 1999) (finding that "a reasonable jury could conclude that the exhibition of pubic area was lascivious" in "beach scenes [of] girls wearing swimsuit bottoms").  

[173] Knox, 32 F.3d at 737.  

[174] Id. at 737. The case provoked significant political controversy.
For a discussion of the "torrent of political outrage," see

Eric M. Freedman, A Lot More Comes into Focus When You Remove the Lens Cap, 81 Iowa L. Rev. 884, 929-30 (1996); see also

Lawrence A. Stanley, The Child Porn Storm, Wash. Post, Jan. 30, 1994, at C3 (op-ed piece by Knox's attorney decrying the case as "a clear injustice, driven by political imperatives");

Pierre Thomas, Reno Takes Tougher Stance on Child Pornography, Wash. Post, Nov. 11, 1994, at A3 (describing Reno's submission of brief at the urging of President Clinton to take a tougher stance in response to a unanimous Senate resolution).

[175] E.g., Frank J. Murray, Appeal Rejected in Child Porn Case: Sentence Upheld for Clothed Poses, Wash. Times, Jan. 18, 1995, at A1 (reporting on the Supreme Court's denial of certiorari in Knox).  

[176] United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987).

[177] Dost, 636 F. Supp. at 832.
The test does not require that all factors be met to find that a depiction is a lascivious exhibition; nor are the factors meant to be exhaustive. Id.
In spite of the universal adherence to the Dost test, a closer examination of the cases reveals troubling uncertainty about the proper meaning of "lascivious." Part IV, infra, will discuss some of the problems with the test.  

[178] Keith Russell, Anti-Porn Group Wages Moral Battle, Nashville Banner, Dec. 29, 1997, at A1. 

[179] Philip Hager, U.S. Grand Jury Refuses to Indict Photographer, L.A. Times, Sept. 17, 1991, at A3.  

[180] Lois Romano, Seizure of 1979 Art Film Draws Fire, Wash. Post, June 30, 1997, at A1.
A federal judge ruled that the film did not violate Oklahoma's statute. See Oklahoma ex rel. Macy v. Blockbuster Videos Inc., 27 Media L. Rep. 1248 (W.D. Okla. 1998);
see also Video Software Dealers Ass'n v. City of Oklahoma City, 6 F. Supp. 2d 1292 (W.D. Okla. 1997) (ordering that confiscated videotapes be returned).  

[181] Celestine Bohlen, A New 'Lolita' Stalls in Europe, N.Y. Times, Sept. 23, 1997, at E1.  

[182] Kate Coscarelli & Jeffery C. Mays, Photos of Undressed Kids Get Grandmother Arrested, Newark Star-Ledger, Feb. 5, 2000, at 1.

[183] See, e.g., Editorial, Suitable for Framing? Lorain Mom's Nude Pictures of Her 8-Year-Old Daughter Raise Questions About Parenting and Prosecution, The Plain Dealer, Oct. 16, 1999, at 8B (mother arrested for nude picture of daughter in bathtub).  

[184] U.S v. Matthews, 11 F. Supp. 2d. 656 (D. Md. 1998), aff'd 209 F. 3d 338 (4th Cir. 2000).
Given this climate, in researching this Article, I have done the only sensible thing: I have not deliberately sought out any "real" child pornography.
Of course, given the looseness of the definition we may all have seen "child pornography," just by watching movies, music videos, or TV.
This question is taken up in Part III.C, which addresses the mainstream availability of "soft core" child porn. There I also discuss works of art depicting child nudity that may lack protection under current law.