Congress passed the Child Protection Restoration and Penalties Enhancement Act of 1990 (CPRPEA) to make it a crime knowingly to possess child pornography.
Child pornography is not protected by the First Amendment
Courts have upheld the statute and even broadened its reach to include sexually suggestive depictions of minors when clothed.
Congress first passed legislation prohibiting child pornography when it adopted the Protection of Children against Sexual Exploitation Act of 1977.
The Supreme Court upheld a state ban in New York v. Ferber (1982), reasoning that child pornography was directly linked to the actual sexual abuse of children. Congress subsequently strengthened the federal ban in a series of bills throughout the 1980s prior to the widespread use of the Internet.
New laws address online pornography
As child pornography flourished online, the national legislature passed more specific laws.
The first statute enacted to address these technological developments was the Child Protection and Obscenity Enforcement Act of 1988, which criminalized transporting, distributing, or receiving child pornography via computer.
State legislatures also passed laws to address child pornography. The Supreme Court sustained one of these laws in Osborne v. Ohio (1990), in which it upheld an Ohio prohibition on the private possession and viewing of child pornography in one’s own home.
Congress expands criminal laws against possessing child pornography
This decision cleared the way for a similarly strict ban at the national level, so Congress responded with CPRPEA. It was the most sweeping ban to date, expanding the federal criminal prohibitions to the knowing possession of child pornography.
CPRPEA prohibits producing, transporting, distributing, or receiving visual depictions of children engaging in sexually explicit conduct. Lower courts interpreted the statute broadly, as in United States v. Knox (3d Cir. 1994), where the court of appeals held that the provocative portrayal of children or lascivious exhibition of the genitals or pubic area even when the child is clothed constitutes child pornography and is thus subject to CPRPEA.
In the years following CPRPEA, Congress continued to strengthen child pornography bans through additional legislation, including the Child Pornography Prevention Act of 1996 (CPPA), which prohibits “virtual” child pornography. The Supreme Court, however, struck down key sections of CPPA in Ashcroft v. Free Speech Coalition (2002).
This article was originally published in 2009. Artemus Ward is professor of political science faculty associate at the college of law at Northern Illinois University. Ward received his Ph.D. from the Maxwell School of Citizenship & Public Affairs at Syracuse University and served as a staffer on the House Judiciary Committee. He is an award-winning author of several books of the U.S. Supreme Court and his research and commentary have been featured in such outlets as the New York Times, Los Angeles Times, Associated Press, NBC Nightly News, Fox News, and C-SPAN.Send Feedback on this article