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Although
Ferber announced five reasons that supported the exclusion of child pornography
from constitutional protection,[185] the primary thrust of these rationales was this: Child pornography must be prohibited because
of the harm done to children in its production.
[186] The speech lacks First Amendment protection because its creation requires
a crime, the abuse of an actual child.
[187]
[*243]
works
as a whole rather than isolated passages. [189] If the point of the law is to protect children from abuse in the
production of pornography, the Court reasoned, it seems irrelevant whether the
resulting work has artistic value.
[190]
In Osborne v. Ohio, the Court extended the reach of child
pornography law in its decision to uphold the criminalization of mere possession
as opposed to distribution or production of child pornography.[191]
Once again, the Court relied on the unique rationale underlying child
pornography law in justifying both the decision and the rejection of a basic
tenet of obscenity law: Privacy rights protect the individual possessor of
obscenity in his own home, even though the material he possesses would be
illegal to make or sell. [192]
All of these doctrinal turns in child pornography law were necessary according
to the Court because child pornography, unlike adult obscenity, springs from a
grievous harm.
[193]
The
first departure was made by the Court itself,
the second by Congress.
In Osborne, the Court introduced an entirely new rationale for banning child pornography: Pedophiles may use it to seduce new victims or to convince children to submit to sexual violation. [194]
[*244]
Until Osborne, it was unheard of in modern First Amendment law that speech could be banned because of the possibility that someone might use it for nefarious purposes. [195]
Congress also departed from the rationale of child pornography law when it passed the Child Pornography Prevention Act of 1996. [196]The
law responded to a technological innovation, the development of virtual child
pornography – wholly computer-generated images. Although
it is possible to view this innovation as a means of circumventing the problem
of child abuse that was previously required for the production of child
pornography, Congress chose another position.
It outlawed under the rubric of child pornography law materials that appear to
be (but are not) depictions of children engaged in sexual conduct. [197]
According to Congress, such child pornography, even though it is made without
the use of real children, must be prevented because it "inflames the
desires of child molesters, pedophiles, and child pornographers" [198] and
"encourages a societal perception of children as sexual objects."
[199]
We can debate whether that law is good policy. What is certain, however, is that it is a total departure from the basis of child pornography law - the abuse of children in the production of the material - as the Supreme Court devised it. The law has so far withstood constitutional challenge in the First Circuit and the Eleventh Circuit; in December of 1999, the Ninth Circuit struck it down. [200]