Child pornography is a significant social problem, which the Internet exacerbated. Hundreds of thousand of images of child pornography are routinely seized by police, and increasingly the images are of small children not teens, often provided by international pedophile rings that require members to contribute thousands of images in order to join (Sieg, 2005). A fairly new development concerns the use of avatars, three-dimensional likenesses employed by computer users for gaming and other activities on the Internet. Participants in websites, such as Second Life, can make their avatars look like anything, including children engaging in child-like activities, such as playing on playgrounds; unfortunately, such avatars also may be engaging in simulated child molestation (Wagner, 2007; Meek-Prieto, 2008).
Online child pornography also represents a multi-million dollar business with thousands of images being posted weekly, and thousands of people being arrested annually for trafficking in such images (Fairchild, 2007). A Senate report speculated that pornography, including child pornography, generates an estimated eight to ten billion per year and is the third largest of organized crime's revenue builders (Bergelt, 2003). The commercial exploitation of the demand for child pornography arguably is increasing, as evidenced by Landslide, a child pornography access provider which generated as much as $1.5 million a month (Sanford, 2002).
Evidence suggests that there is a strong correlation between the consumption of child pornography and pedophilic behavior (Burgess, 1974; Quinsey & LaLumiere, 1996). Scientific data currently supports a correlation between the use of child pornography and the likelihood of the user sexually exploiting children (Dallas, 2007). Newspaper reports abound concerning the arrests of pedophiles, who have committed horrific sexual crimes against children, and who also had child pornography in their possession (Neighbor Convicted, 2002). The numbers of children trafficked globally for purposes of sexual exploitation in a global sex industry are astonishingly large and intimately linked to the seemingly insatiable demand for child pornography, as well (Dillon, 2008).
The Committee on the Rights of Children of the United Nations' High Commission on Human Rights recognizes the substantial threat that child pornography in all its forms poses to children worldwide. Its Optional Protocol to the Convention on the Rights of the Child concerning the sale of children, child prostitution and child pornography defines child pornography as "any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes" (Article 2, Optional Protocol, 2002).
Such a sweeping definition of child pornography would prove problematic under the criminal justice system in the United States, however. Much pornographic material is protected under the First Amendment's Freedom of Speech Clause. While free speech is valued highly in our constitutional jurisprudence, it is not the only interest valued in our legal system. The protection of children is a recognized compelling state interest in constitutional law, as well (Federal Communications Commission v. Pacifica Foundation, 1978; Ginsberg v. New York, 1968; Prince v. Massachusetts, 1944). Thus, legislative bodies at the state and federal level have seen fit to suppress child pornography to the limits permissible under the Constitution in an effort to protect children from the predatory activities of pedophiles, which are believed to be inextricably linked to child pornography. What are those constitutional limits imposed by the First Amendment?
UNPROTECTED SPEECH UNDER THE FIRST AMENDMENT
The First Amendment provides that "Congress shall make no law...abridging the freedom of speech..." Nevertheless, that declaration is not an absolute. It is widely accepted, for example, that falsely shouting "fire" in a crowded theater is not an utterance deserving of constitutional protection (Schenck v. United States, 1919). Several categories of speech, judicially defined, have emerged that do not enjoy constitutional protection. "There are certain well-defined and narrowly limited classes of speech, the prevention of which have never been thought to raise any constitutional problem. These included the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality"(Chaplinsky v. New Hampshire, 572, 1942).
In addition to the exclusion of fighting words from constitutional protection, the Supreme Court in Brandenburg v. Ohio (1969) held that speech which incites illegal conduct is not protected, defining such speech as "advocacy . . . directed to incite or produce such action," and not the mere advocacy or encouragement of illegal activity (Brandenburg v. Ohio, 446, 1969). For such speech to fall outside the protection of the First Amendment, the unprotected conduct incited by the speech must be immediately produced (Adler, 2001). Advocacy of illegal action at some indefinite future time is protected speech and cannot be punished (Hess v. Indiana, 1973). Moreover, true threats, objectively viewed in their total context, can be forbidden by statute, as such threats usually are linked to criminal conduct (Watts v. United States, 1969).
Defamatory speech, which by definition consists of untruthful allegations, enjoys no constitutional protection because false speech contributes nothing to valued public discourse. Although falsity is the key to its unprotected status, public officials and public persons must establish malice, defined as a reckless disregard for the truth or falsity of the statements asserted, before such speech may be punished in civil courts through an award of damages (New York Times v. Sullivan, 1964). The malice requirement, as well as the requirement that public persons prove falsity with respect to speech of public concern (Philadelphia Newspapers, Inc. v. Hepps, 1986), is designed to preserve the open debate of both public issues and the characteristics of those persons involved in their resolution (Curtis Publishing Company v. Butts, 1967). A negligence standard is permitted for private person plaintiffs (Gertz v. Robert Welch, Inc., 1974).
Finally, some sexually explicit speech falls outside the parameters of constitutional protection. In Roth v. United States (1957) the Supreme Court held that "obscenity is not within the area of constitutionally protected speech or press" (Roth v. United States, 485, 1957). Subsequently, the Court defined that class of unprotected speech in Miller v. California (1973) as that which, taken as a whole, appeals to the prurient interest of the average person applying contemporary community standards, depicts or describes, in a patently offensive way, sexual conduct, and as a whole, lacks serious literary, artistic, political, or scientific value, such as "[P]atently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated..." and "[P]atently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals" (Miller v. California, 24-25, 1973). Federal statutes that criminalize the transportation and distribution of such materials are limited to the Court's definition announced in Miller (18 USC [section][section]1461-1465); thus, non-obscene, pornographic materials enjoy constitutional protection.
While some child pornography would be considered obscene under Miller, the Supreme Court permitted a separate category of non-obscene pornographic material to be suppressed if the content involved images of actual children. At issue in New York v. Ferber (1982) was the constitutionality of a New York criminal statute prohibiting persons from knowingly promoting sexual performances by minors by distributing materials that depict such performances, even if the materials were not legally obscene. Concluding that states were entitled to greater leeway in the regulation of pornographic depictions of children, the Court upheld the statute. The Court reasoned that a state legitimately could determine that sexual abuse is linked to the distribution of child pornography, and that the advertising and selling of child pornography plays a role in the production of such materials, "an activity [that is] illegal throughout the Nation" (New York v. Ferber, 761, 1982). The Court also recognized that "[t]he value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis" (New York v. Ferber, 762, 1982).
COMMERCIAL SPEECH AND THE FIRST AMENDMENT
Until fairly recently, commercial speech, defined as that which is designed to propose a commercial transaction (Board. of Trustees of the State University of N.Y. v. Fox, 1989; Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 1986), also would have fallen into the "unprotected" categories of speech under constitutional law. Early Supreme Court cases involving First Amendment challenges to restrictions on commercial speech were widely interpreted as establishing that commercial speech was not protected by the First Amendment. In a very brief decision rendered in 1942, the Court observed that "the Constitution imposes no restraint on government [restrictions] as respects purely commercial advertising (Valentine v. Chrestensen, 1942). Later cases refined this concept to deny constitutional...