Child Pornography

• Author: John G. West
• Pages: 350

Page 350

Every year, thousands of children are compelled to engage in pornographic acts for the production of films and photographs. Child pornography is one of the most insidious forms of child abuse because the victimization does not stop with the physical acts of abuse. In the words of Justice BYRON R. WHITE, "the pornography's continued existence causes the child victims continuing harm by haunting the children in years to come." Because child pornography is child abuse, the Supreme Court has held that it is not protected by the FIRST AMENDMENT. In NEW YORK V. FERBER (1982) the Court ruled that the production and distribution of child pornography can be prosecuted even if the material does not meet the legal test for OBSCENITY because, even if it is not legally obscene, it is still the product of child abuse and, hence, a proper object of state regulation.

In Osborne v. Ohio (1990) the Court extended the doctrine of Ferber to cover the private possession of child pornography. Ohio prosecuted Osborne for possessing child pornography in violation of a state statute. Osborne contended that the First Amendment prohibited the state from proscribing private possession, but the Supreme Court disagreed by a vote of 6?3. (Osborne's conviction was nevertheless overturned on procedural grounds.) The Court noted that much of the production and sale of child pornography has gone underground and is therefore difficult to prosecute. The only effective way to stop the child abuse by pornographers is by banning possession of the material outright.

Writing for the dissenters, Justice WILLIAM J. BRENNAN argued that the Ohio statute suffered from OVERBREADTH because of its loose definition of what constituted child pornography. Even if the statute had not been overbroad, however, Brennan would have invalidated it. Recalling the words of STANLEY V. GEORGIA (1969), Brennan said that "if the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his own house, what book he may read or what films he may...