Before 1996, Congress defined child pornography with reference to the Ferber standard. In New York v. Ferber, 458U.S.747(1982), the Supreme Court held that the government could restrict the distribution of child pornography to protect children from the child sexual abuse harm inherent in making it. In Osborne v. Ohio, 495U.S.103(1990), the Ferber proscription was extended by the Court to the mere possession of child pornography.
The Child Pornography Prevention Act added two categories of speech to the definition of child pornography. The first prohibited "any visual depiction, including any photograph, film, video, picture, or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct." In Ashcroft case, the Court observed that this provision "captures a range of depictions, sometimes called 'virtual child pornography,' which include computer-generated images, as well as images produced by more traditional means."
The second prohibited "any sexually explicit image that was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct."
Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court modifying its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, political, or scientific value". It is now referred to as the three-prong standard or the Miller test.
The Child Online Protection Act (COPA) was a law in the United States of America, passed in 1998 with the declared purpose of restricting access by minors to any material defined as harmful to such minors on the Internet. The law, however, never took effect, as three separate rounds of litigation led to a permanent injunction against the law in 2009.
Pornography has existed since the origins of the United States, and has become more readily accessible in the 21st century. Advanced by technological development, it has gone from a hard-to-find "back alley" item, beginning in 1969 with Blue Movie by Andy Warhol, the Golden Age of Porn (1969–1984) and home video, to being more available in the country and later, starting in the 1990s, readily accessible to nearly anyone with a computer or other device connected to the Internet. The U.S. has no current plans to block explicit content from children and adolescents, as many other countries have planned or proceeded to do.
The Child Protection and Obscenity Enforcement Act of 1988, title VII, subtitle N of the Anti-Drug Abuse Act of 1988, Pub. L.100–690, 102 Stat. 4181, enacted November 18, 1988, H.R. 5210, is part of a United States Act of Congress which places stringent record-keeping requirements on the producers of actual, sexually explicit materials. The guidelines for enforcing these laws, part of the United States Code of Federal Regulations, require producers of sexually explicit material to obtain proof of age for every model they shoot, and retain those records. Federal inspectors may at any time launch inspections of these records and prosecute any infraction.
The Children's Internet Protection Act (CIPA) is one of a number of bills that the United States Congress proposed to limit children's exposure to pornography and explicit content online.
The PROTECT Act of 2003 is a United States law with the stated intent of preventing child abuse as well as investigating and prosecuting violent crimes against children. "PROTECT" is a backronym which stands for "Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today".
Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), followed by 542 U.S. 656 (2004), was a decision of the United States Supreme Court, ruling that the Child Online Protection Act (COPA) was unconstitutional as a violation of the First Amendment's guarantee of freedom of speech.
New York v. Ferber, 458 U.S. 747 (1982), was a landmark decision of the U.S Supreme Court, unanimously ruling that the First Amendment to the United States Constitution did not forbid states from banning the sale of material depicting children engaged in sexual activity, even if the material was not obscene.
The Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or the Budapest Convention, is the first international treaty seeking to address Internet and computer crime (cybercrime) by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations. It was drawn up by the Council of Europe in Strasbourg, France, with the active participation of the Council of Europe's observer states Canada, Japan, the Philippines, South Africa and the United States.
Osborne v. Ohio, 495 U.S. 103 (1990), is a U.S. Supreme Court case in which the Court held that the First Amendment to the United States Constitution allows states to outlaw the possession, as distinct from the distribution, of child pornography. In doing so, the Court extended the holding of New York v. Ferber, which had upheld laws banning the distribution of child pornography against a similar First Amendment challenge, and distinguished Stanley v. Georgia, which had struck down a Georgia law forbidding the possession of pornography by adults in their own homes. The Court also determined that the Ohio law at issue was not overbroad, relying on a narrowing interpretation of the law the Ohio Supreme Court had adopted in prior proceedings in the case; however, because it was unclear whether the state had proved all the elements of the crime, the Court ordered a new trial.
United States v. Williams, 553 U.S. 285 (2008), was a decision by the Supreme Court of the United States that a federal statute prohibiting the "pandering" of child pornography did not violate the First Amendment to the United States Constitution, even if a person charged under the code did in fact not possess child pornography with which to trade.
Legal frameworks around fictional pornography depicting minors vary depending on country and nature of the material involved. Laws against production, distribution and consumption of child pornography generally separate images into three categories: real, pseudo, and virtual. Pseudo-photographic child pornography is produced by digitally manipulating non-sexual images of real minors to make pornographic material. Virtual child pornography depicts purely fictional characters. "Fictional pornography depicting minors", as covered in this article, includes these latter two categories, whose legalities vary by jurisdiction, and often differ with each other and with the legality of real child pornography.
In People vs Freeman of 1988, the California Supreme Court stated that adult film production was to be protected as free speech under the First Amendment. They ruled that since such films did not include obscene images and indecency, and stayed within society's standards, the adult film industry should be granted the freedom of speech. Escaping highly regulated government intervention, regulation in the adult film industry has been limited to preventing child pornography. In the United States Code of Regulations, under title Title 18, Section 2257, no performers under the age of 18 are allowed to be employed by adult industry production companies. Failure to abide by this regulation results in civil and criminal prosecutions. To enforce the age entry restriction, all adult industry production companies are required to have a Custodian of Records that documents and holds records of the ages of all performers.
In the United States, child pornography is illegal under federal law and in all states and is punishable by up to life imprisonment and fines of up to $250,000. U.S. laws regarding child pornography are virtually always enforced and amongst the harshest in the world. The Supreme Court of the United States has found child pornography to be outside the protections of the First Amendment to the United States Constitution. Federal sentencing guidelines on child pornography differentiate between production, distribution, and purchasing/receiving, and also include variations in severity based on the age of the child involved in the materials, with significant increases in penalties when the offense involves a prepubescent child or a child under the age of 18. U.S. law distinguishes between pornographic images of an actual minor, realistic images that are not of an actual minor, and non-realistic images such as drawings. The latter two categories are legally protected unless found to be obscene, whereas the first does not require a finding of obscenity.
Simulated child pornography is child pornography depicting what appear to be minors but which is produced without their direct involvement.
The Canadian law forbids the production, distribution, and possession of child pornography, which are punishable by up to 20 years' imprisonment or a fine of $5,000.
The Dost test is a six-factor guideline established in 1986 in the United States district court case United States v. Dost, 636 F. Supp. 828. The case involved 22 nude or semi-nude photographs of females aged 10–14 years old. The undeveloped film containing the images was mailed to a photo processing company in Hollywood, Los Angeles, California.
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), is a U.S. Supreme Court case that struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech". The case was brought against the U.S. government by the Free Speech Coalition, a "California trade association for the adult-entertainment industry", along with Bold Type, Inc., a "publisher of a book advocating the nudist lifestyle"; Jim Gingerich, who paints nudes; and Ron Raffaelli, a photographer who specialized in erotic images. By striking down these two provisions, the Court rejected an invitation to increase the amount of speech that would be categorically outside the protection of the First Amendment.
United States obscenity law deals with the regulation or suppression of what is considered obscenity and therefore not protected speech under the First Amendment to the United States Constitution. In the United States, discussion of obscenity typically relates to defining what pornography is obscene, as well as to issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. State laws operate only within the jurisdiction of each state, and there are differences among such laws. Federal statutes ban obscenity and child pornography produced with real children. Federal law also bans broadcasting of "indecent" material during specified hours.
The Child Protection Restoration and Penalties Enhancement Act of 1990 , Title III of the Crime Control Act of 1990, Pub. L.Tooltip Public Law 101–647, 104 Stat. 4789, enacted November 29, 1990, S. 3266, is part of a United States Act of Congress which amended 18 U.S.C. § 2257 in respect to record-keeping requirements as set by the Child Protection and Obscenity Enforcement Act of 1988, also establishing prohibitions. The Act also amended 18 U.S.C. § 2243 and 18 U.S.C. § 2252 establishing and increasing penalties for sexual abuse of a minor. Also see Child Protective Services, for global practices and the approach of US.
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