Civil Rights

Is Real or Virtual Child Porn Ever Protected as Free Speech?

By E.A. Gjelten, Author and Editor
The First Amendment doesn’t protect any child pornography, even virtual kiddie porn that uses realistic computer simulation instead of actual children.

Freedom of expression, protected under the First Amendment to the U.S. Constitution, doesn’t include pornography that shows children engaging in sexual activities—even if the porn it doesn’t meet the legal standard for obscenity. As the U.S. Supreme Court has explained, government should have more leeway in regulating kiddie porn than other kinds of sexual material, because it’s harmful to the children who were involved in making the videos or pictures. (New York v. Ferber, 458 U.S. 747 (1982)).

In addition to state laws prohibiting child pornography, federal law makes it a crime to distribute or receive kiddie porn across state lines on purpose, including by computer (18 U.S.C. § 2252A(a)(2)).

Virtual Kiddie Porn

Pornographers tried to get around the law by producing “virtual” child porn—videos and pictures that appear to show children in sexual acts but actually use realistic computer-generated images of kids or young-looking adult actors. Congress responded by outlawing pornography that appeared to involve children. When the Supreme Court ruled that parts of the law were unconstitutional violations of the First Amendment (Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)), lawmakers tried again.

In the current version of the federal statutes, the definition of child pornography includes computer-generated images of children engaged in sexually explicit activities, but these simulations must be so realistic that ordinary viewers can’t tell them apart from the real thing. As a defense, anyone accused of this crime may prove that no actual minors were involved (unless the images were manipulated to look like a particular real child who could be identified). But it’s still illegal to advertise or distribute virtual kiddie porn that claims to be the real thing (known as “pandering”), even if it’s not. Consumers can also be charged for requesting (or “soliciting”) this material if they believe it shows real kids. (18 U.S.C. §§ 2252A(a)(3)(B)), 2256(8).)

After these changes, the Supreme Court held that the law doesn’t violate the First Amendment. (United States v. Williams, 553 U.S. 285 (2008).)

Questions for Your Lawyer

  • Some people in my office turned me into the cops after seeing what they thought was child pornography on my computer. But a friend had sent me the images to show what he could do with computer simulation. Can I fight the charges because I knew the "children" weren't real?
  • My wife reported me to the police after she looked through the browsing history on my computer and found a child porn site. But I only saw the site briefly when I clicked on a link for what I thought was adult porn. Can I be prosecuted for accidentally viewing child pornography?
  • Some people who follow my photography site reported me for child pornography because they were offended by pictures I had posted of my six- and eight-year old children playing nude with the hose in my backyard. Aren’t these artistic, black-and-white photos a form of protected free speech?
Go to main FAQ page on the First Amendment and free speech.
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