Academic journal article Journal of Legal, Ethical and Regulatory Issues

When a Lie Is the Truth: Pandering Child Pornogrpahy

Academic journal article Journal of Legal, Ethical and Regulatory Issues

When a Lie Is the Truth: Pandering Child Pornogrpahy

Article excerpt

INTRODUCTION

Child pornography is a significant social problem, which the Internet exacerbated. Hundreds of thousand of images of child pornography are routinely seized by police, and increasingly the images are of small children not teens, often provided by international pedophile rings that require members to contribute thousands of images in order to join (Sieg, 2005). A fairly new development concerns the use of avatars, three-dimensional likenesses employed by computer users for gaming and other activities on the Internet. Participants in websites, such as Second Life, can make their avatars look like anything, including children engaging in child-like activities, such as playing on playgrounds; unfortunately, such avatars also may be engaging in simulated child molestation (Wagner, 2007; Meek-Prieto, 2008).

Online child pornography also represents a multi-million dollar business with thousands of images being posted weekly, and thousands of people being arrested annually for trafficking in such images (Fairchild, 2007). A Senate report speculated that pornography, including child pornography, generates an estimated eight to ten billion per year and is the third largest of organized crime's revenue builders (Bergelt, 2003). The commercial exploitation of the demand for child pornography arguably is increasing, as evidenced by Landslide, a child pornography access provider which generated as much as $1.5 million a month (Sanford, 2002).

Evidence suggests that there is a strong correlation between the consumption of child pornography and pedophilic behavior (Burgess, 1974; Quinsey & LaLumiere, 1996). Scientific data currently supports a correlation between the use of child pornography and the likelihood of the user sexually exploiting children (Dallas, 2007). Newspaper reports abound concerning the arrests of pedophiles, who have committed horrific sexual crimes against children, and who also had child pornography in their possession (Neighbor Convicted, 2002). The numbers of children trafficked globally for purposes of sexual exploitation in a global sex industry are astonishingly large and intimately linked to the seemingly insatiable demand for child pornography, as well (Dillon, 2008).

The Committee on the Rights of Children of the United Nations' High Commission on Human Rights recognizes the substantial threat that child pornography in all its forms poses to children worldwide. Its Optional Protocol to the Convention on the Rights of the Child concerning the sale of children, child prostitution and child pornography defines child pornography as "any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes" (Article 2, Optional Protocol, 2002).

Such a sweeping definition of child pornography would prove problematic under the criminal justice system in the United States, however. Much pornographic material is protected under the First Amendment's Freedom of Speech Clause. While free speech is valued highly in our constitutional jurisprudence, it is not the only interest valued in our legal system. The protection of children is a recognized compelling state interest in constitutional law, as well (Federal Communications Commission v. Pacifica Foundation, 1978; Ginsberg v. New York, 1968; Prince v. Massachusetts, 1944). Thus, legislative bodies at the state and federal level have seen fit to suppress child pornography to the limits permissible under the Constitution in an effort to protect children from the predatory activities of pedophiles, which are believed to be inextricably linked to child pornography. What are those constitutional limits imposed by the First Amendment?

UNPROTECTED SPEECH UNDER THE FIRST AMENDMENT

The First Amendment provides that "Congress shall make no law...abridging the freedom of speech..." Nevertheless, that declaration is not an absolute. …

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