Legal status of art depicting minors engaged in sexually explicit conduct

The legal status of art depicting minors engaged in sexually explicit conduct is a gray area. Jacob Sullum writes, "Tellingly, people who possess 'sexually obscene images of children,' such as 'a drawing, cartoon, sculpture, or painting'—production of which need not entail abuse of any actual children—face the same heavy penalties under federal law as people caught with actual child pornography. That provision, like the reaction to Grisham's comments, suggests these policies are driven by outrage and disgust rather than reason. There is clearly something wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children."

Legislative history

The Protection of Children Against Sexual Exploitation Act, passed in 1978, did not exceed the bounds of existing obscenity standards as articulated by the U.S. Supreme Court in Miller v. California. The U.S. Supreme Court ruled, in the 1982 case New York v. Ferber, that "a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography." Justices Brennan and Marshall, concurring, wrote:

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But in my view application of § 263.15 or any similar statute to depictions of children that in themselves do have serious literary, artistic, scientific, or medical value, would violate the First Amendment. As the Court recognizes, the limited classes of speech, the suppression of which does not raise serious First Amendment concerns, have two attributes. They are of exceedingly "slight social value," and the State has a compelling interest in their regulation. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 768-769, 86 L.Ed. 1031 (1942). The First Amendment value of depictions of children that are in themselves serious contributions to art, literature, or science, is, by definition, simply not "de minimis." See ante, at 761. At the same time, the State's interest in suppression of such materials is likely to be far less compelling. For the Court's assumption of harm to the child resulting from the "permanent record" and "circulation" of the child's "participation," ante, at 759, lacks much of its force where the depiction is a serious contribution to art or science. The production of materials of serious value is not the "lowprofile, clandestine industry" that according to the Court produces purely pornographic materials. See ante, at 760. In short, it is inconceivable how a depiction of a child that is itself a serious contribution to the world of art or literature or science can be deemed "material outside the protection of the First Amendment." See ante, at 763. I, of course, adhere to my view that, in the absence of exposure, or particular harm, to juveniles or unconsenting adults, the State lacks power to suppress sexually oriented materials.

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The Child Protection Act of 1984, passed in response to New York v. Ferber, changed the meaning of "sexual conduct" to include certain non-obscene pictures of children. In drafting that law, the House Judiciary Committee examined four bills which were proposed as amendments to the 1977 Act. Three of these bills provided an affirmative defense to prosecutions if the material had literary, scientific, artistic, or social value. The Committee considered the bills before it and proposed a compromise which would provide an affirmative defense allowing "simulation[s]" of "explicit sexual conduct" only if there was no possibility of harm to the minor. This provision, however, was criticized as providing a loophole within the statute. Deputy Assistant Attorney General Mark M. Richard expressed concern on behalf of the Justice Department that such an affirmative defense would create an "appealing loophole" allowing child pornographers to frustrate the purpose of the statute by placing otherwise proscribed child pornography materials within a legitimate literary or scientific work.