Dartmouth Law Journal Article: It Should be Legal to Possess Child Porn; Our Rebuttal

Even the ACLU opposes child pornography, at least when real children are depicted. Nevertheless, some people appear to remain irresistibly attracted to the challenge of arguing that possession of child porn should be legal.

Cortelyou Kenney graduated summa cum laude with High Honors in Comparative Literature from Dartmouth College in 2005. Her thesis on
political power of art and theater was awarded the Chase Peace Prize for best thesis on the topic of war and post-conflict reconstruction. She currently attends the University of California, Berkeley School of Law. And she believes it should be legal to possess child pornography. Here is the abstract from her article in the Fall 2006 issue of the Dartmouth Law Journal:


QUESTIONING THE IMAGE: THE CONSTITUTIONALITY OF CHILD
PORNOGRAPHY

In Ashcroft v. The Free Speech Coalition (2002) the Supreme Court struck down portions of the Child Pornography Prevention Act of 1996 (CPPA) which targeted computer-generated images of minors engaged in sexual conduct and materials marketed for their portrayal of underage sexuality. Writing for the majority, Justice Anthony M. Kennedy argued the sections in question would criminalize canonized works of art and chill constitutionally protected adult expression. Stating the petitioner’s posture “turn[ed] the First Amendment upside down,” he held “the Government [cannot] prohibit speech because of its tendency to persuade viewers to commit illegal acts” nor “suppress lawful speech as the means to suppress unlawful speech.” This Article argues the Ashcroft decision was correct. Adopting the
perspective of a visual and literary scholar, I examine the historical relationship between law and aesthetics, illustrating how a different outcome could have easily precipitated the consequences Kennedy envisioned. Nevertheless, the decision simultaneously highlighted and failed to address larger problems in the Court’s jurisprudence. In particular, the reasoning undergirding Kennedy’s thought-action
distinction exposed conflicts with precedents governing the legality of child pornography and implied that merely looking at obscene or sexually explicit images of minors should not be considered a criminal offense. While at first blush it may appear unpalatable, this Article ultimately concludes that like photographs of murder, rape or other heinous crimes, viewing images and ex post facto records of sexual interactions
involving minors should fall under the First Amendment’s umbrella protection of freedom of speech and thought. Instead, the actions which give rise to creation, circulation, and sale of child pornography must be prosecuted. Defining “the obscene” or engaging in supply side constitutionalism force the state to evaluate aesthetic
discourse, an act that undermines the diversity of opinion the First Amendment was designed to foster and protect. Ultimately, no matter how repugnant we may find the fantasies and desires of others, the foundation of our free society rests on the recognition that they are beyond the purview of the government.

States criminalize the possession of child porn because they feel it is a serious problem that cannot be sufficiently addressed by merely targeting its production and distribution. Crucial to Kenney’s argument is to ignore or minimize the problem of child sexual abuse in America. The National Center for PTSD estimates that 10% of boys and 25% of girls are sexually abused. The American Academy of Child & Adolescent Psychiatry says that, “The long-term emotional and psychological damage of sexual abuse can be devastating to the child.” Nevertheless, Kenney does not seem convinced that the problem is substantial. She says the Ferber decision that permitted states to regulate child porn (see below) was motivated by “the perceived ‘national emergency'”. She makes a point of saying that the “satanic day care center scandals…proved later to be unfounded”. (p.41) The massive reality and harm of child sexual abuse in America disappear into an attack on prudery:

Ferber and its progeny have amplified the climate of fear surrounding the erotic status of children with eerie parallels to the Comstock Era’s empowerment of local law enforcement officers to enforce their own mores on “deviant” cultural figures. (p.48)

Child porn is small potatoes, asserts Kenney. “The evidence pointing to
a vast market for child pornography which the Court relied upon in its
decisions is…greatly exaggereated.” (p.51) If so, the Internet certainly
seems to have revived child porn’s fortunes:

…[Child-porn sites are] up for a short period, but
then move off to new domain names and Web addresses to evade detection
from authorities…

“The ease and anonymity of using home computers has revolutionized
accessibility as well as the production and distribution of child
pornography,” says Ernie Allen. “The fact that child pornography can be
purchased using a credit card is causing a global problem and an
immeasurable impact on the sexual exploitation of children.”

Allen is CEO of the National Center for Missing and Exploited
Children, Alexandria, Va., which operates a tip line to report child
porn by telephone or e-mail. In 2001 the group received 21,603 tips
about child porn Web sites. Three years later, that figure zoomed to
106,176…

…Allen figures there are at least 100,000 sites currently
up and running…

Allen says that global sales of illegal pornography that exploits
children–including those under 4 years old–are about $3 billion a
year.

…the
bulk is being spent on pictures of pre-pubescent U.S. girls sold mainly
to U.S. consumers…

The possession or distribution of such material is a
federal crime in the United States, punishable by prison sentences.

Online child porn is nonetheless proliferating, with about 20
percent of all Internet pornography involving children, according to
the National Center for Missing and Exploited Children…

“The biggest challenges prosecuting child porn on the Internet is that
there are no distinct boundaries, unlike the physical world where crime
happens and there is a clear victim and offender,” says Paul Bresson, a
spokesperson for the U.S. Department of Justice in Washington, D.C. “A
lot of the porn bounces off international servers and it’s difficult to
find where it is coming from…”

…investigations commonly lead to bogus companies on sites set up under false names.

Not only is child porn a significant and growing problem, but the above
quotations point to the difficulty of investigating and prosecuting
these cases. If the Department of Justice finds it to be a challenge,
it is unreasonable to expect that a signficant solution to the problem
lies in merely encouraging porn victims to “sue website owners,
publishers or film companies to remove their images from general
circulation, as victims of defamation can sue for monetary damages.” (p.54)
Even relatively powerful, wealthy adults find themselves discouraged by professionals from pursuing civil suits for misuse of their likeness:

Valerie Harper: …I was told about an advertisement in Hustler magazine which I saw. It
was for T-shirts called Shock Tops that people could send away for. The
buyer had their choice of seven famous women pictured in the nude; all
of our full names were listed and, of course, choice of color of
T-shirt. I was appalled and angry and had meetings with a lawyer
regarding what action I should take. All my then advisors, this
attorney, my personal manager (regarding career) and my business
manager (regarding accounting and finances) advised strongly against
taking any action whatsoever. They all concurred that it would be
extremely costly and would draw attention to and sell more of the
shirts.

If the star of “Rhoda” hesitates before suing, what are the prospects of civil legal redress in the case of, say, these 1,500 Ukrainian child porn “models”?
It is unreasonable to ask government to blind itself to the realities
of the situation. Civil recourses are not adequate to the problem of
child porn. If there are “other creative legal solutions that
adequately take into account First Amendment rights,” as Kenney claims
there is, we would most like to see them. Kenney neither presents
these “solutions” nor documents that they work. (p.54)

Kenney
not only holds that child porn is a small problem, but that current
production is low. She cites a claim from journalist Judith Levine
that

practically all the sexually explicit images of
children circulating cybernetically are the same stack of yellowing
pages found at the back of those X-rated shops [in 1970s raids on Times
Square], only digitized. These pictures tend to be twenty to fifty
years old, made overseas, badly reproduced, and for the most part
pretty chaste. (p.51)

If this is true, why did anyone
bother to gather 1,500 underage porn performers in the Ukraine in 2004?
And by the way, Levine’s claim that child porn is primarily made
overseas is false. 55% of the child porn industry is based in the United States.

Kenney conveniently ignores what porn is generally about–exploitative sex without literary, scientific, artistic or political value–in favor of foregrounding more sympathetic defendants. These include Aristophanes, Rabelais, Chaucer, Boccaccio, Shaw, Balzac, Hugo, Wilde, Joyce, Lawrence and Faulkner. Other ‘defendants’ pressed into service include journalists, doctors, academics and a hapless mother arrested for taking innocent pictures of her daughter in the bath. We agree that punishing innocent and valid uses of child images and the potential suppression of classic writers are bad outcomes. Fortunately, virtually all of these bad outcomes can be prevented with the drafting of intelligent laws, such as the Ohio law upheld by the Supreme Court in Osborne:

“(A) No person shall do any of the following:

. . . . .

“(3) Possess or view any material or performance that shows a minor who
is not the person’s child or ward in a state of nudity, unless one of
the following applies:

“(a) The material or performance is sold, disseminated, displayed,
possessed, controlled, brought or caused to be brought into this state,
or presented for a bona fide artistic, medical, scientific,
educational, religious, governmental, judicial, or other proper
purpose, by or to a physician, psychologist, sociologist, scientist,
teacher, person pursuing bona fide studies or research, librarian,
clergyman, prosecutor, judge, or other person having a proper interest
in the material or performance.

“(b) The person knows that the parents, guardian, or custodian has
consented in writing to the photographing [495 U.S. 103, 107] or use of
the minor in a state of nudity and to the manner in which the material
or performance is used or transferred.”

For those rare boundary cases where a law like this results in injustice, the Supreme Court (see Ferber below) says that individual redress in court is the appropriate cure, not striking down an entire law which has significant public benefits.

Kenney claims that “prosecutions of clearly innocent parties have skyrocketed”, but provides only a few anecdotes to support this claim. There were 101 child pornography/obscenity convictions in the US during the month of December 2006 alone (TRAC Reports). Kenney needs to show that cases of wrongful prosecution are a significant fraction of the cases brought before the courts, and that this can’t be cured by adjusting (rather than abolishing) anti-child porn laws.

While Kenney is aware of the Ferber and Osborne decisions that support the states’ rights to regulate child porn, she fails to rebut adequately many of their key arguments. One of these is that children have a right to privacy in their personal matters. Another is that porn is a nontrivial factor in child molestation. Kenney appears to be unaware of the work of Diana Russell, one of the world’s foremost researchers on issues of pornography and child sexual abuse. Kenney goes so far as to claim “there is absolutely no evidence that an individual looking at pictures directly or indirectly facilitates future child abuse.” (p.51) We invite Kenney to spend some time with the 40+ articles in our Child Molestation category and see if she retains that opinion.

Kenney claims that “images, unlike the acts which underlie them, cannot be guilty.” (p.33) This argument ignores the humiliation and anxiety felt by children who know that embarrassing images of them may be circulating around the world. Pornographic pictures are also used to blackmail people into doing things and/or keeping silent about them. See “Child Pornography on the Internet”, “Child pornography: images of the abuse of children” and this St. Louis case. As the court reasons below, the states do have a strong, legitimate interest in encouraging those who possess child pornography to destroy it.

Kenney suggests it will be difficult to distinguish pornographic from nonpornographic representations of children, that images will need to be “scrutinized meticulously”. (p.43) This ignores the fact that the goal for most porn is “simplistic release”. It is not complex or subtle. You will find precious few literary classics in your typical porn shop. Instead, you’ll find:

“Torture of Pixie”, “Gag Factor”, ”Teens for Cash”, “MILF’s Gone
Anal”, “Backend Bi-Boys”, “Gang Bang
that Pussy”, “Over 40 and Still Gang-banging”, “Screw my Wife, Please!”,
“Interracial Throat Bangers”, “Pain Threshhold”, “Guys Who Suck Their
Own Cocks”, “Facial Frenzy”, “The
Violation of Aurora Snow: A Lesbian Gang Bang”, “Don’t Tell Mommy”,
and “Little Girl Next Door”.

Kenney appears to suggest that many kinds of speech, including child porn, are ultimately beyond reach of criticism because they rely on “normative content based evaluations”. She feels the courts have no absolute basis from which to claim that “the social value of child pornography is de minimus.” (p.50) This might be a plausible basis for argument if speech had no influence on thought or action. However, the scientific studies and personal testimony in our Impact of Porn and Secondary Effects categories clearly show that porn, on balance, negatively influences attitudes and behavior, just as adult enterprises put neighborhoods at risk for crime and blight. Actual harms, not debatable concepts of ‘offensiveness’, justify state regulation.

Speech does matter. That’s why our laws in fact regulate many kinds of speech. NoPornNorthampton opposes excessive regulations on speech, and has no desire to extend state censorship beyond its current configuration, but some regulations are justified. Child porn is a perfect example of where the benefits of regulation far outweigh its costs. Child pornographers have had several decades to demonstrate the “social value” of their wares. We’ve seen scant evidence of this to date, but plenty of attempts to confuse the issue with abstract speculation and references to fine art (which art, by the way, is not proscribed under laws like those in Ohio). The harms, by contrast, are obvious, concrete, widescale, and current.

Let’s review in more detail two key Supreme Court decisions that explained why states may regulate pornographic depictions of children. The first is New York v. Ferber (1982). Here we see how the court balances values and interests to decide what speech should enjoy First Amendment protection. We see no absolutism, no worship of some mythical state of First Amendment purity, just justices wrestling with how to get the best overall result for the people.

The court concludes that the harm of child pornography is great, the benefit from not regulating it is slight, and that attempting to combat the problem merely through prosecuting the creation of child porn is difficult and ineffective.

Syllabus: A New York statute prohibits persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicts such a performance. The statute defines “sexual performance” as any performance that includes sexual conduct by such a child, and “sexual conduct” is in turn defined as actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals. Respondent bookstore proprietor was convicted under the statute for selling films depicting young boys masturbating, and the Appellate Division of the New York Supreme Court affirmed. The New York Court of Appeals reversed, holding that the statute violated the First Amendment as being both underinclusive and overbroad. The court reasoned that in light of the explicit inclusion of an obscenity standard in a companion statute banning the knowing dissemination of similarly defined material, the statute in question could not be construed to include an obscenity standard, and therefore would prohibit the promotion of materials traditionally entitled to protection under the First Amendment.

Held: As applied to respondent and others who distribute similar material, the statute in question does not violate the First Amendment as applied to the States through the Fourteenth Amendment. Pp. 753-774.

(a) The States are entitled to greater leeway in the regulation of pornographic depictions of children for the following reasons: (1) the legislative judgment that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child, easily passes muster under the First Amendment; (2) the standard of Miller v. California, 413 U.S. 15, for determining what is legally obscene is not a satisfactory solution to the child pornography problem; (3) the advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation; (4) the value of permitting live performances and photographic reproductions of children engaged in lewd exhibitions is exceedingly modest, if not de minimis; and (5) recognizing and classifying child pornography as a category of material outside the First Amendment’s protection is not incompatible with this Court’s decisions dealing with what speech is unprotected. When a definable class of material, such as that covered by the New [748] York statute, bears so heavily and pervasively on the welfare of children engaged in its production, the balance of competing interests is clearly struck, and it is permissible to consider these materials as without the First Amendment’s protection. Pp. 756-764.

(b) The New York statute describes a category of material the production and distribution of which is not entitled to First Amendment protection. Accordingly, there is nothing unconstitutionally “underinclusive” about the statute, and the State is not barred by the First Amendment from prohibiting the distribution of such unprotected materials produced outside the State. Pp. 764-766.

(c) Nor is the New York statute unconstitutionally overbroad as forbidding the distribution of material with serious literary, scientific, or educational value. The substantial overbreath rule of Broadrick v. Oklahoma, 413 U.S. 601, applies. This is the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. “[Whatever] overbreadth may exist should be cured through case-by-case analysis of the fact situations to which [the statute’s] sanctions, assertedly, may not be applied.” Broadrick v. Oklahoma, supra, at 615-616. Pp. 766-774.

…In recent years, the exploitive use of children in the production of pornography has become a serious national problem. [note 1] The Federal Government and 47 States have sought to combat the problem with statutes specifically directed at the production of child pornography. At least half of such statutes do not require that the materials produced be legally obscene. Thirty-five States and the United States Congress have also passed legislation prohibiting the distribution of such materials; 20 States prohibit the distribution of material depicting children engaged in sexual conduct without requiring that the material be legally obscene. [note 2] [750]…

In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the Court laid the foundation for the excision of obscenity from the realm of constitutionally protected expression:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene . . . . 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.” Id., at 571-572 (footnotes omitted).

Embracing this judgment, the Court squarely held in Roth v. United States, 354 U.S. 476 (1957), that “obscenity is not within the area of constitutionally protected speech or press.” Id., at 485. The Court recognized that “rejection of obscenity as utterly without redeeming social importance” was implicit in the history of the First Amendment: The original States provided for the prosecution of libel, blasphemy, and profanity, and the “universal judgment that obscenity should be restrained [is] reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 states, and in the 20 obscenity laws enacted by Congress from 1842 to 1956.” Id., at 484-485 (footnotes omitted)…

The Miller standard, like its predecessors, was an accommodation between the State’s interests in protecting the “sensibilities of unwilling recipients” from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children.

First. It is evident beyond the need for elaboration that a State’s interest in “safeguarding the physical and psychological [757] well-being of a minor” is “compelling.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982). “A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.” Prince v. Massachusetts, 321 U.S. 158, 168 (1944). Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights. In Prince v. Massachusetts, supra, the Court held that a statute prohibiting use of a child to distribute literature on the street was valid notwithstanding the statute’s effect on a First Amendment activity. In Ginsberg v. New York, supra, we sustained a New York law protecting children from exposure to nonobscene literature. Most recently, we held that the Government’s interest in the “well-being of its youth” justified special treatment of indecent broadcasting received by adults as well as children. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative findings accompanying passage of the New York laws reflect this concern:

“[There] has been a proliferation of exploitation of children as subjects in sexual performances. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances.” 1977 N. Y. Laws, ch. 910, § 1. [note 8] [758]

We shall not second-guess this legislative judgment. Respondent has not intimated that we do so. Suffice it to say that virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating “child pornography.” The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. [note 9] That judgment, we think, easily passes muster under the First Amendment. [759]

Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation. [note 10] Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if [760] not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions. [note 11] Cf. United States v. Darby, 312 U.S. 100 (1941) (upholding federal restrictions on sale of goods manufactured in violation of Fair Labor Standards Act).

Respondent does not contend that the State is unjustified in pursuing those who distribute child pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materials that are legally obscene under the Miller test. While some States may find that this approach properly accommodates its interests, it does not follow [761] that the First Amendment prohibits a State from going further. The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be “patently offensive” in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. “It is irrelevant to the child [who has been abused] whether or not the material . . . has a literary, artistic, political or social value.” Memorandum of Assemblyman Lasher in Support of § 263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem. [note 12]

Third. The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation. [note 13] “It rarely has been suggested that [762] the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). [note 14] We note that were the statutes outlawing the employment of children in these films and photographs fully effective, and the constitutionality of these laws has not been questioned, the First Amendment implications would be no greater than that presented by laws against distribution: enforceable production laws would leave no child pornography to be marketed. [note 15]

Fourth. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance [763] or scientific or educational work. As a state judge in this case observed, if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. [note 16] Simulation outside of the prohibition of the statute could provide another alternative. Nor is there any question here of censoring a particular literary theme or portrayal of sexual activity. The First Amendment interest is limited to that of rendering the portrayal somewhat more “realistic” by utilizing or photographing children.

Fifth. Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions. “The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech.” Young v. American Mini Theatres, Inc., 427 U.S. 50, 66 (1976) (opinion of STEVENS, J., joined by BURGER, C. J., and WHITE and REHNQUIST, JJ.). See also FCC v. Pacifica Foundation, 438 U.S. 726, 742-748 (1978) (opinion of STEVENS, J., joined by BURGER, C. J., and REHNQUIST, J.). “[It] is the content of [an] utterance that determines whether it is a protected epithet or an unprotected ‘fighting comment.'” Young v. American Mini Theatres, Inc., supra, at 66. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Leaving aside the special considerations when public officials are the target, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a libelous publication is not protected by the Constitution. Beauharnais v. Illinois, 343 U.S. 250 (1952). Thus, it is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs [764] the expressive interests, if any, at stake, that no process of case-by-case adjudication is required. When a definable class of material, such as that covered by § 263.15, bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment…

The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is “strong medicine” and have employed it with hesitation, and then “only as a last resort.” Broadrick, 413 U.S., at 613. We have, in consequence, insisted that the overbreadth involved be “substantial” before the statute involved will be invalidated on its face. [note 24] [770]…

Broadrick examined a regulation involving restrictions on political campaign activity, an area not considered “pure speech,” and thus it was unnecessary to consider the proper overbreadth test when a law arguably reaches traditional forms of expression such as books and films. As we intimated in Broadrick, the requirement of substantial overbreadth extended “at the very least” to cases involving conduct plus speech. This case, which poses the question squarely, convinces us that the rationale of Broadrick is sound and should be applied in the present context involving the harmful employment of children to make sexually explicit materials for distribution.

The premise that a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications is hardly novel. On most occasions involving facial invalidation, the Court has stressed the embracing sweep of the statute over protected expression. [note 26] [772] Indeed, JUSTICE BRENNAN observed in his dissenting opinion in Broadrick:

“We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and in that sense a requirement of substantial overbreadth is already implicit in the doctrine.” Id., at 630.

The requirement of substantial overbreadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation, has the potential to repeatedly chill the exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the regulation. [note 27] This observation appears equally applicable to the publication of books and films as it is to activities, such as picketing or participation in election campaigns, which have previously been categorized as involving conduct plus speech. We see no appreciable difference between the position of a publisher or bookseller in doubt as to the reach of New York’s child pornography law and the situation faced by the Oklahoma state employees with respect to that State’s restriction on partisan political activity. Indeed, it could reasonably be argued that the bookseller, with an economic incentive to sell materials that may fall within the statute’s scope, may be less likely to be deterred than the employee who wishes to engage in political campaign activity. Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 380-381 (1977) (overbreadth analysis inapplicable to commercial speech)…

Applying these principles, we hold that § 263.15 is not substantially overbroad. We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. New York, as we have held, may constitutionally prohibit dissemination of material specified in § 263.15. While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of § 263.15 in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute’s reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on “lewd [exhibitions] of the genitals.” Under these circumstances, § 263.15 is “not substantially overbroad and . . . whatever overbreadth may exist [774] should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.” Broadrick v. Oklahoma, 413 U.S., at 615-616.

Footnotes to the Majority Opinion (emphasis added)

1. “[Child] pornography and child prostitution have become highly organized, multimillion dollar industries that operate on a nationwide scale.” S. Rep. No. 95-438, p. 5 (1977). One researcher has documented the existence of over 260 different magazines which depict children engaging in sexually explicit conduct. Ibid. “Such magazines depict children, some as young as three to five years of age . . . . The activities featured range from lewd poses to intercourse, fellatio, cunnilingus, masturbation, rape, incest and sado-masochism.” Id., at 6. In Los Angeles alone, police reported that 30,000 children have been sexually exploited. Sexual Exploitation of Children, Hearings before the Subcommittee on Select Education of the House Committee on Education and Labor, 95th Cong., 1st Sess., 41-42 (1977)…

9. “[The] use of children as . . . subjects of pornographic materials is very harmful to both the children and the society as a whole.” S. Rep. No. 95-438, p. 5 (1977). It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults. Schoettle, Child Exploitation: A Study of Child Pornography, 19 J. Am. Acad. Child Psychiatry 289, 296 (1980) (hereafter cited as Child Exploitation); Schoettle, Treatment of the Child Pornography Patient, 137 Am. J. Psychiatry 1109, 1110 (1980); Densen-Gerner, Child Prostitution and Child Pornography: Medical, Legal, and Societal Aspects of the Commercial Exploitation of Children, reprinted in U.S. Dept. of Health and Human Services, Sexual Abuse of Children: Selected Readings 77, 80 (1980) (hereafter cited as Commercial Exploitation) (sexually exploited children predisposed to self-destructive behavior such as drug and alcohol abuse or prostitution). See generally Burgess & Holmstrom, Accessory-to-Sex: Pressure, Sex, and Secrecy, in A. Burgess, A. Groth, L. Holmstrom, & S. Sgroi, Sexual Assault of Children and Adolescents 85, 94 (1978); V. De Francis, Protecting the Child Victim of Sex Crimes Committed by Adults 169 (1969); Ellerstein & Canavan, Sexual Abuse of Boys, 134 Am. J. Diseases of Children 255, 256-257 (1980); Finch, Adult Seduction of the Child: Effects on the Child, Medical Aspects of Human Sexuality 170, 185 (Mar. 1973); Groth, Sexual Trauma in the Life Histories of Rapists and Child Molesters, 4 Victimology 10 (1979). Sexual molestation by adults is often involved in the production of child sexual performances. Sexual Exploitation of Children, A Report to the Illinois General Assembly by the Illinois Legislative Investigating Commission 30-31 (1980). When such performances are recorded and distributed, the child’s privacy interests are also invaded. See n. 10, infra.

10. As one authority has explained:


“[Pornography] poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.”
Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981).

See also Child Exploitation 292 (“[It] is the fear of exposure and the tension of keeping the act secret that seem to have the most profound emotional repercussions”); Note, Protection of Children from Use in Pornography: Toward Constitutional and Enforceable Legislation, 12 U. Mich. J. Law Reform 295, 301 (1979) (hereafter cited as Use in Pornography) (interview with child psychiatrist) (“The victim’s knowledge of publication of the visual material increases the emotional and psychic harm suffered by the child”).


Thus, distribution of the material violates “the individual interest in avoiding disclosure of personal matters.”
Whalen v. Roe, 429 U.S. 589, 599 (1977). Respondent cannot undermine the force of the privacy interests involved here by looking to Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), and Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), cases protecting the right of newspapers to publish, respectively, the identity of a rape victim and a youth charged as a juvenile offender. Those cases only stand for the proposition that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.” Id., at 103.

11. See Sexual Exploitation of Children, Hearings before the Subcommittee on Crime of the House Judiciary Committee, 95th Cong., 1st Sess., 34 (1977) (statement of Charles Rembar) (“It is an impossible prosecutorial job to try to get at the acts themselves”); id., at 11 (statement of Frank Osanka, Professor of Social Justice and Sociology) (“[We] have to be very careful . . . that we don’t take comfort in the existence of statutes that are on the books in the connection with the use of children in pornography . . . . There are usually no witnesses to these acts of producing pornography“); id., at 69 (statement of Investigator Lloyd Martin, Los Angeles Police Department) (producers of child pornography use false names making difficult the tracing of material back from distributor). See also L. Tribe, American Constitutional Law 666, n. 62 (1978); Note, Child Pornography: A New Role for the Obscenity Doctrine, 1978 U. Ill. Law Forum 711, 716, n. 29; Use in Pornography 315 (“passage of criminal laws aimed at producers without similar regulation of distributors will arguably shift the production process further underground”)…

14. In Giboney, a unanimous Court held that labor unions could be restrained from picketing a firm in support of a secondary boycott which a State had validly outlawed. In Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973), the Court allowed an injunction against a newspaper’s furtherance of illegal sex discrimination by placing of job advertisements in gender-designated columns. The Court stated:


“Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity.”
Id., at 389…

19. It is often impossible to determine where such material is produced. The Senate Report accompanying federal child pornography legislation stressed that “it is quite common for photographs or films made in the United States to be sent to foreign countries to be reproduced and then returned to this country in order to give the impression of foreign origin.” S. Rep. No. 95-438, p. 6 (1977). In addition, States have not limited their distribution laws to material produced within their own borders because the maintenance of the market itself “leaves open the financial conduit by which the production of such material is funded and materially increases the risk that [local] children will be injured.” 52 N. Y. 2d 674, 688, 422 N. E. 2d 523, 531 (1981) (Jasen, J., dissenting)…

25. Parker v. Levy, 417 U.S. 733, 760 (1974) (“This Court has . . . repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the ‘remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct . . . .’ CSC v. Letter Carriers, 413 U.S. 548, 580-581 (1973)”). See Bogen, First Amendment Ancillary Doctrines, 37 Md. L. Rev. 679, 712-714 (1978); Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 860-861 (1970).

In Osborne v. Ohio (1990), the Supreme Court made clear that states can ban the mere possession of child pornography. The reason is not that this material might be obscene, but that its existence harms the children involved and it might be used to seduce other children. The state has a compelling interest to destroy the market for this type of material by criminalizing possession.

[Syllabus:] After Ohio police found photographs in petitioner Osborne’s home, each of which depicted a nude male adolescent posed in a sexually explicit position, he was convicted of violating a state statute prohibiting any person from possessing or viewing any material or performance showing a minor who is not his child or ward in a state of nudity, unless (a) the material or performance is presented for a bona fide purpose by or to a person having a proper interest therein, or (b) the possessor knows that the minor’s parents or guardian has consented in writing to such photographing or use of the minor. An intermediate appellate court and the State Supreme Court affirmed the conviction. The latter court rejected Osborne’s contention that the First Amendment prohibits the States from proscribing the private possession of child pornography. The court also found that the statute is not unconstitutionally overbroad, since, in light of its specific exceptions, it must be read as only applying to depictions of nudity involving a lewd exhibition or graphic focus on the minor’s genitals, and since scienter [knowledge of wrongfulness] is an essential element of the offense…

Held:

1. Ohio may constitutionally proscribe the possession and viewing of child pornography. Even assuming that Osborne has a valid First Amendment interest in such activities, this case is distinct from Stanley v. Georgia, 394 U.S. 557, which struck down a Georgia law outlawing the private possession of obscene material on the ground that the State’s justifications for the law–primarily, that obscenity would poison the minds of its viewers–were inadequate. In contrast, Ohio does not rely on a paternalistic interest in regulating Osborne’s mind, but has enacted its law on the basis of its compelling interests in protecting the physical and psychological well-being of minors and in destroying the market for the exploitative use of children by penalizing those who possess and view the offending materials. See New York v. Ferber, 458 U.S. 747, 756 -758, 761-762. Moreover, Ohio’s ban encourages possessors to destroy such materials, which permanently record the victim’s abuse [495 U.S. 103, 104] and thus may haunt him for years to come, see id., at 759, and which, available evidence suggests, may be used by pedophiles to seduce other children. Pp. 108-111.

2. Osborne’s First Amendment overbreadth arguments are unpersuasive. Pp. 111-122.

(a) The Ohio statute is not unconstitutionally overbroad. Although, on its face, the statute purports to prohibit constitutionally protected depictions of nudity, it is doubtful that any overbreadth would be “substantial” under this Court’s cases, in light of the statutory exemptions and “proper purposes” provisions. In any event, the statute, as construed by the Ohio Supreme Court, plainly survives overbreadth scrutiny. By limiting the statute’s operation to nudity that constitutes lewd exhibition or focuses on genitals, that court avoided penalizing persons for viewing or possessing innocuous photographs of naked children and thereby rendered the “nudity” language permissible. See Ferber, supra, at 765. Moreover, the statute’s failure, on its face, to provide a mens rea [guilty mind] requirement is cured by the court’s conclusion that the State must establish scienter under the Ohio default statute specifying that recklessness applies absent a statutory intent provision. Pp. 111-115…

JUSTICE WHITE delivered the opinion of the Court.

In order to combat child pornography, Ohio enacted Rev. Code Ann. 2907.323(A)(3) (Supp. 1989), which provides in pertinent part:

“(A) No person shall do any of the following:

. . . . .

“(3) Possess or view any material or performance that shows a minor who is not the person’s child or ward in a state of nudity, unless one of the following applies:

“(a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance.

“(b) The person knows that the parents, guardian, or custodian has consented in writing to the photographing [495 U.S. 103, 107] or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred.”

Petitioner, Clyde Osborne, was convicted of violating this statute and sentenced to six months in prison, after the Columbus, Ohio, police, pursuant to a valid search, found four photographs in Osborne’s home. Each photograph depicts a nude male adolescent posed in a sexually explicit position. [1] …

The threshold question in this case is whether Ohio may constitutionally proscribe the possession and viewing of child pornography or whether, as Osborne argues, our decision in Stanley v. Georgia, 394 U.S. 557 (1969), compels the contrary result. In Stanley, we struck down a Georgia law outlawing the private possession of obscene material. We recognized that the statute impinged upon Stanley’s right to receive information in the privacy of his home, and we found Georgia’s justifications for its law inadequate. Id., at 564-568. [3]

Stanley should not be read too broadly. We have previously noted that Stanley was a narrow holding, see United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 127 (1973), and, since the decision in that case, the value of permitting child pornography has been characterized as “exceedingly modest, if not De minimis.” New York v. Ferber, 458 U.S. 747, 762 (1982). But assuming, for the sake of argument, that Osborne has a First Amendment interests in viewing and possessing child pornography, we nonetheless find this case distinct from Stanley because the interests underlying child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley. Every court to address the issue has so concluded. See, e. g., People v. Geever, 122 Ill. 2d 313, 327-328, 522 N. E. 2d 1200, 1206-1207 (1988); [495 U.S. 103, 109] Felton v. State, 526 So.2d 635, 637 (Ala. Ct. Crim. App.), aff’d sub nom. Ex parte Felton, 526 So.2d 638, 641 (Ala. 1988); State v. Davis, 53 Wash. App. 502, 505, 768 P.2d 499, 501 (1989); Savery v. State, 767 S. W. 2d 242, 245 (Tex. App. 1989); United States v. Boffardi, 684 F. Supp. 1263, 1267 (SDNY 1988).

In Stanley, Georgia primarily sought to proscribe the private possession of obscenity because it was concerned that obscenity would poison the minds of its viewers. 394 U.S., at 565. [4] We responded that “[w]hatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Id., at 566. The difference here is obvious: The State does not rely on a paternalistic interest in regulating Osborne’s mind. Rather, Ohio has enacted 2907.323(A)(3) in order to protect the victims of child pornography; it hopes to destroy a market for the exploitative use of children.

“It is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling’. . . . The legislative judgment, as well as the judgment found in relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.” Ferber, 458 U.S., at 756 -758 (citations omitted). It is also surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, [495 U.S. 103, 110] thereby decreasing demand. In Ferber, where we upheld a New York statute outlawing the distribution of child pornography, we found a similar argument persuasive: “The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation. ‘It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.'” Id., at 761-762, quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).

Osborne contends that the State should use other measures, besides penalizing possession, to dry up the child pornography market. Osborne points out that in Stanley we rejected Georgia’s argument that its prohibition on obscenity possession was a necessary incident to its proscription on obscenity distribution. 394 U.S., at 567 -568. This holding, however, must be viewed in light of the weak interests asserted by the State in that case. Stanley itself emphasized that we did not “mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials . . . In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.” Id., at 568, n. 11. [5]

Given the importance of the State’s interest in protecting the victims of child pornography, we cannot fault Ohio for attempting to stamp out this vice at all levels in the distribution chain. According to the State, since the time of our decision in Ferber, much of the child pornography market has been driven underground; as a result, it is now difficult, if not impossible, to solve the child pornography problem by only attacking production and distribution. Indeed, 19 States [495 U.S. 103, 111] have found it necessary to proscribe the possession of this material. [6]

Other interests also support the Ohio law. First, as Ferber recognized, the materials produced by child pornographers permanently record the victim’s abuse. The pornography’s continued existence causes the child victims continuing harm by haunting the children in years to come. 458 U.S., at 759. The State’s ban on possession and viewing encourages the possessors of these materials to destroy them. Second, encouraging the destruction of these materials is also desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity. [7]

Given the gravity of the State’s interests in this context, we find that Ohio may constitutionally proscribe the possession and viewing of child pornography.

Osborne next argues that even if the State may constitutionally ban the possession of child pornography, his conviction [495 U.S. 103, 112] is invalid because 2907.323(A)(3) is unconstitutionally overbroad in that it criminalizes an intolerable range of constitutionally protected conduct. [8] In our previous decisions discussing the First Amendment overbreadth doctrine, we have repeatedly emphasized that where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only “real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). Even where a statute at its margins infringes on protected expression, “facial invalidation is inappropriate if the ‘remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct . . . .'” New York v. Ferber, 458 U.S., at 770, n. 25.

The Ohio statute, on its face, purports to prohibit the possession of “nude” photographs of minors. We have stated that depictions of nudity, without more, constitute protected expression. See Ferber, supra, at 765, n. 18. Relying on this observation, Osborne argues that the statute as written is substantially overbroad. We are skeptical of this claim because, in light of the statute’s exemptions and “proper purposes” provisions, the statute may not be substantially overbroad under our cases. [9] However that may be, Osborne’s [495 U.S. 103, 113] overbreadth challenge, in any event, fails because the statute, as construed by the Ohio Supreme Court on Osborne’s direct appeal, plainly survives overbreadth scrutiny. Under the Ohio Supreme Court reading, the statute prohibits “the possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals, and where the person charged.” 37 Ohio St. 3d, at 252, 525 N. E. 2d, at 1368. [10] By limiting the statute’s operation in [495 U.S. 103, 114] this manner, the Ohio Supreme Court avoided penalizing persons for viewing or possessing innocuous photographs of naked children. We have upheld similar language against overbreadth challenges in the past. In Ferber, we affirmed a conviction under a New York statute that made it a crime to promote the “‘lewd exhibition of [a child’s] genitals.'” 458 U.S., at 751 . We noted that “[t]he term ‘lewd exhibition of the genitals’ is not unknown in this area and, indeed, was given in Miller v. California, 413 U.S. 15 (1973),] as an example of a permissible regulation.” Id., at 765. [11] [495 U.S. 103, 115]…

Like the Hamling petitioners, Osborne had notice that his conduct was proscribed. It is obvious from the face of 2907.323(A)(3) that the goal of the statute is to eradicate child pornography. The provision criminalizes the viewing and possessing of material depicting children in a state of nudity for other than “proper purposes.” The provision appears in the “Sex Offenses” chapter of the Ohio Code. Section 2907.323 is preceded by 2907.322, which proscribes “[p]andering sexually oriented matter involving a minor,” and followed by 2907.33, which proscribes “[d]eception to obtain matter harmful to juveniles.” That Osborne’s photographs of adolescent boys in sexually explicit situations constitute child pornography hardly needs elaboration. Therefore, although 2907.323(A)(3) as written may have been imprecise at its fringes, someone in Osborne’s position would not be surprised to learn that his possession of the four photographs at issue in this case constituted a crime…

Finally, despite Osborne’s contention to the contrary, we do not believe that Massachusetts v. Oakes, 491 U.S. 576 (1989), supports his theory of this case. In Oakes, the petitioner challenged a Massachusetts pornography statute as [495 U.S. 103, 119] overbroad; since the time of the defendant’s alleged crime, however, the State had substantially narrowed the statute through a subsequent legislative enactment – an amendment to the statute. In a separate opinion, five Justices agreed that the state legislature could not cure the potential over-breadth problem through the subsequent legislative action; the statute was void as written. Id., at 585-586.

Osborne contends that Oakes stands for a similar but distinct proposition that, when faced with a potentially overinclusive statute, a court may not construe the statute to avoid overbreadth problems and then apply the statute, as construed, to past conduct. The implication of this argument is that if a statute is overbroad as written, then the statute is void and incurable. As a result, when reviewing a conviction under a potentially overbroad statute, a court must either affirm or strike down the statute on its face, but the court may not, as the Ohio Supreme Court did in this case, narrow the statute, affirm on the basis of the narrowing construction, and leave the statute in full force. We disagree.

First, as indicated by our earlier discussion, if we accepted this proposition, it would require a radical reworking of our law. Courts routinely construe statutes so as to avoid the statutes’ potentially overbroad reach, apply the statute in that case, and leave the statute in place…

Footnotes

…[Footnote 7] The Attorney General’s Commission on Pornography, for example, states: “Child pornography is often used as part of a method of seducing child victims. A child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having ‘fun’ participating in the activity.” 1 Attorney General’s Commission on Pornography, Final Report 649 (1986) (footnotes omitted). See also, D. Campagna and D. Poffenberger, Sexual Trafficking in Children 118 (1988); S. O’Brien, Child Pornography 89 (1983)…

[Footnote 9] The statute applies only where an individual possesses or views the depiction of a minor “who is not the person’s child or ward.” The State, moreover, does not impose criminal liability if either “[t]he material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, [495 U.S. 103, 113] judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance,” or “[t]he person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred.” It is true that, despite the statutory exceptions, one might imagine circumstances in which the statute, by its terms, criminalizes constitutionally protected conduct. If, for example, a parent gave a family friend a picture of the parent’s infant taken while the infant was unclothed, the statute would apply. But, given the broad statutory exceptions and the prevalence of child pornography, it is far from clear that the instances where the statute applies to constitutionally protected conduct are significant enough to warrant a finding that the statute is overbroad. Cf. Oakes, supra, at 589-590 (opinion of SCALIA, J., joined by BLACKMUN, J., concurring in judgment in part and dissenting in part).

Nor do we find very persuasive Osborne’s contention that the statute is unconstitutionally overbroad because it applies in instances where viewers or possessors lack scienter. Although 2907.323(A)(3) does not specify a mental state, Ohio law provides that recklessness is the appropriate mens rea where a statute “neither specifies culpability nor plainly indicates a purpose to impose strict liability.” Ohio Rev. Stat. Ann. 2901.21(B) (1987).

[Footnote 10] The Ohio court reached this conclusion because “when the ‘proper purposes’ exceptions set forth in R. C. 2907.323(A)(3)(a) and (b) are considered, the scope of the prohibited conduct narrows significantly. The [495 U.S. 103, 114] clear purpose of these exceptions . . . is to sanction the possession or viewing of material depicting nude minors where that conduct is morally innocent. Thus, the only conduct prohibited by the statute is conduct which is not morally innocent, i. e., the possession or viewing of the described material for prurient purposes. So construed, the statute’s proscription is not so broad as to outlaw all depictions of minors in a state of nudity, but rather only those depictions which constitute child pornography.” 37 Ohio St. 3d, at 251-252, 525 N. E. 2d, at 1367-1368 (emphasis in original).

[Footnote 11] The statute upheld against an overbreadth challenge in Ferber was, moreover, arguably less narrowly tailored than the statute challenged in this case because, unlike 2907.323(A)(3), the New York law did not provide a broad range of exceptions to the general prohibition on lewd exhibition of the genitals. Despite this lack of exceptions, we upheld the New York law, reasoning that “[h]ow often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of [the statute] in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute’s reach.” 458 U.S., at 773.

[Footnote 12] This principle, of course, accords with the rationale underlying overbreadth challenges. We normally do not allow a defendant to challenge a law as it is applied to others. In the First Amendment context, however, we have said that “[b]ecause of the sensitive nature of constitutionally protected expression, we have not required that all those subject to overbroad regulations risk prosecution to test their rights. For free expression–of transcendent value to all society, and not merely to those exercising their rights–might be the loser.” Dombrowski, 380 U.S., at 486. But once a statute is authoritatively construed, there is no longer any danger that protected speech will be deterred and [495 U.S. 103, 116] therefore no longer any reason to entertain the defendant’s challenge to the statute on its face.

The First Amendment is worthy of high respect, but it is not now nor has ever been absolute. Other values must enter into the analysis to realize a humane society that is worth living in. These include the reasonable protection of children from exploitation, abuse and intimidation.

—————————– added on 4/20/07

Testimony given to Massachusetts legislators at a hearing on March 16, 1992. This account appears in In Harm’s Way: The Pornography Civil Rights Hearings (p.402-403).

Testimony of [CM]

My name is [CM] and I’m a resident of Somerville. I’m in my last year as a graduate student at Harvard Divinity School and I will graduate in June with a Master’s in Divinity…

I am in a unique position to talk about the pain that being a part of pornography brings. Between 1959 and 1964, I lived a very schizophrenic existence. I was one of several stars, if you will, at a porno studio where live sex acts between children and women and animals were enjoyed by a largely male audience. Other times of my life were spent in my middle-class home, going to school, taking piano lessons and attending choir practice at my church.

The porno studio that I was subjected to was filled with evil and pain for me. I was humiliated and repeatedly raped. I was forced to perform fellatio on patrons in the bleachers in the audience. I was forced to smile as animals hurt my body. Other children were not as fortunate as I was. After a night of ridicule, my father would take me home. I knew many children who lived in a trailer behind the studio. Many of them had been runaways and they were locked into the trailer to prevent their running again. Their search for something better in this life ended in a smoky tavern filled with drunken laughter.

I understand that pornography has changed with the advent of video, but the intent and the pain that it causes has not. Children do not usually pose for long periods in front of crowds of screaming men anymore, but the transmission of their self and their image has haunting effects that last forever. The coercion that is perpetrated on them, the brainwashing–children with diminished self-esteem usually grow into prostitutes, drug abusers, alcoholics, child abusers. They hate themselves and many times turn that hatred out toward society. Pornography kills the souls of so many, not only the soul of the child, but the soul of those who would exploit others in order to feel more powerful.

The effects of this child abuse upon me was devastating. I remember being a little eight-year-old girl with no need for a training bra. My nipples and my genitalia were often rouged to copy the styles of older women in porno magazines, The dogs I was subjected to were the inspriation of the owners who had read about the animals in pornographic novels. I saw very little boys and girls who were handcuffed to posts. In my early twenties, I was extremely promiscuous and frequented porno parlors for fun.

And I’d be silent about the abuse I lived with. Although my abuse happened in another state, over thirty years ago, it does not mean that the degradation of pornography does not continue. Children are still forced into the same positions that I was. I was not only a victim of extreme assault on my body, but I was occasionally subjected to viewing the violence perpetrated on other children. I was raped by men, I was raped by animals, and I was raped by other children who were coerced into raping me. I speak not only for myself, but I want to remember the children who died in these conditions–children whose parents never cared, children who are buried acros this country that we’ll never know about.

See also:

Harvard Law Professor Frederick Schauer’s “The Boundaries of the First Amendment”; Government Regulates Many Kinds of Speech
“Although the First Amendment refers to freedom of ‘speech,’ much
speech remains totally untouched by it. Antitrust law, securities
regulation, the law of criminal solicitation, and most of the law of
evidence, for example, involve legal control of speech lying well
beyond the boundaries of the First Amendment’s concern. It is not that
such regulation satisfies a higher burden of justification imposed by
the First Amendment. Rather, the First Amendment does not even show up
in the analysis. The explanation for lack of First Amendment coverage
lies not in a theory of free speech or in legal doctrine, but instead
in an often serendipitous array of political, cultural, and economic
factors determining what makes the First Amendment salient in some
instances of speech regulation but not in others. Because the First
Amendment’s cultural magnetism attracts a wide variety of claims,
nonlegal factors, far more than legal ones, determine which
opportunistic claims to First Amendment attention will succeed and
which will not. Legal doctrine and free speech theory may explain what
is protected within the First Amendment’s boundaries, but the location
of the boundaries themselves–the threshold determination of what is a
First Amendment case and what is not–is less a doctrinal matter than a
political, economic, social, and cultural one…”

How the Supreme Court Reconciles Adult-Use Zoning with the First Amendment
The record discloses a factual basis for the Common Council’s
conclusion that this kind of restriction will have the desired effect. [n34]
It is not our function to appraise the wisdom of its decision to
require adult theaters to be separated, rather than concentrated in the
same areas. In either event, the city’s interest in attempting to
preserve the quality of urban life is one that must be accorded high
respect. Moreover, the city must be allowed a reasonable opportunity to
experiment with solutions to admittedly serious problems.

Since what is ultimately at stake is nothing more than a limitation on the place where adult films may be exhibited, [n35] even though the determination of whether a [p72]
particular film fits that characterization turns on the nature of its
content, we conclude that the city’s interest in the present and future
character of its neighborhoods adequately supports its classification
of motion pictures.

Exposure to Pornography as a Cause of Child Sexual Victimization
The incest started at the age of eight. I did not understand any of it
and did not feel that it was right. My dad would try to convince me
that it was ok. He would find magazines, articles or pictures that
would show fathers and daughters or mothers, brothers and sisters
having sexual intercourse. (Mostly fathers and daughters.) He would say
that if it was published in magazines that it had to be all right
because magazines could not publish lies… He would say, “See it’s
okay to do because it’s published in magazines…”

When child molesters expose targeted children to pornography, the
children often feel guilty and complicit, particularly if they found
the material sexually exciting or masturbated to it. According to
Scotland Yard, one of the five major ways that pedophiles use
pornography is to “ensure the secrecy of any sexual activity with a
child who has already been seduced” (Tate, 1990, p. 24). Child
molesters can often silence their victims by telling them that their
parents would be very upset to learn that they had watched pornography.
Even without such warnings, children often fear that their parents will
blame and punish them for having looked at this material. Children who
are sexually abused following the exposure may feel complicit in the
abuse and thus become even more motivated to remain silent. Ultimately,
this reduces the likelihood that abused children will disclose the
sexual abuse to their parents or others.

Certified Sex Therapist Marty Klein Wants You to Believe Porn Is Harmless
We can’t let the Dr. Klein’s doublespeak pass without further mention. For him, child porn is “children’s eroticism” and abusive practices are “erotic predilections”.

Porn’s “Verbatim” Accounts of the Pleasures of Child Sexual Abuse Don’t Square with Reality
I have been preoccupied with understanding the act of sexual assault on children for thirty-five years, since the moment I was myself assaulted. I liken this experience to being dropped (at five years old) from an airplane over the middle of the Pacific; whereupon I spent thirty years of my life swimming from one piece of debris to another, alone and vulnerable to attack. All the while I kept myself alive mentally by sheer determination to discover how this could have happened… I recall my attacks vividly. My father had divorced and remarried, taking custody of me. My new stepmother’s father came to visit and proceeded to attack me, twice. He would wait until I was asleep and then I would be awakened by a hand clamped over my mouth…and then he proceeded. The violation was as if an atomic bomb had gone off in my head. All I could think about was trying to ascertain whether or not I was dead or alive. I was actually fighting death face to face. I have no trouble understanding how some children actually die during such an attack.

13 thoughts on “Dartmouth Law Journal Article: It Should be Legal to Possess Child Porn; Our Rebuttal

  1. How can you say that all of her evidence is anecdotal when all of your articles about the harm done by child porn are testimonies? I would call testimonies anecdotal.

  2. Testimonies, or anecdotes, have value, but only when they are representative of a valid, logical, overall pattern (as opposed to being outliers). The number of anecdotes to support a certain position is also a factor. The anecdotes we cite to support our position drawn on hundreds and hundreds of experiences, and we are satisfied that they are describing logical consequences of someone’s viewing porn. The anecdotes presented by our opposition appear to be far fewer in number, and generally appear to be outliers. For example, these Penn State law professors erroneously suggest that the experience of a few wealthy porn actresses is representative of the industry as a whole.

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