Child pornography first became illegal at the federal level in 1978, with the enactment of the Protection of Children Against Sexual Exploitation Act of 1977.
These included underground networks operating in adult theaters, sex shops, and private clubs, where such material was often hidden or kept under the counter for trusted customers.
The anonymity and accessibility provided by digital platforms led to a surge in the production and consumption of child pornography.
[9] Child pornography under federal law is defined as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age).
Visual depictions include photographs, videos, digital or computer generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict a minor who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic.
[10] The United States Court of Appeals for the Second Circuit has held that images created by superimposing the face of a child on sexually explicit photographs of legal adults is not protected speech under the First Amendment.
[11] However, the U.S. Supreme Court ruled that "virtual child pornography" was constitutionally protected speech, unless meeting the criteria of obscenity.
[10] Federal law prohibits the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce (18 U.S.C.
Any individual who attempts or conspires to commit a child pornography offense is also subject to prosecution under federal law.
[10][15][16] Child pornography offenses for transportation (including mailing or shipping), receipt, distribution, and possession with the intent to distribute or sell child pornography offenses each carry a mandatory minimum term of 5 years of imprisonment and a maximum term of 20 years.
[10][16] Simple possession of child pornography is punishable by up to 10 years in federal prison, and does not carry a mandatory minimum term of imprisonment.
Pornography is generally protected speech, unless it is obscene, as the Supreme Court of the United States held in 1973 in Miller v. California.
The court gave a number of justifications why child pornography should not be protected, including that the government has a compelling interest in safeguarding the physical and psychological well-being of minors.
The same plaintiffs challenged the amended statute and accompanying regulations, but the new version was upheld in American Library Association v. Reno, 33 F.3d 78 (D.C. Cir.
1998), the Tenth Circuit rejected the regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted".
Referring to Ferber, the court stated that "the CPPA prohibits speech that records no crime and creates no victims by its production.
1466A for using a Virginia Employment Commission computer to receive "obscene Japanese anime cartoons that graphically depicted prepubescent female children being forced to engage in genital-genital and oral-genital intercourse with adult males".
The bill addresses various aspects of child abuse, prohibiting some illustrations and computer-generated images depicting children in a pornographic manner.
In May 2008, the Supreme Court upheld the 2003 federal law Section 2252A(a)(3)(B) of Title 18, United States Code that criminalizes the pandering and solicitation of child pornography, in a 7–2 ruling penned by Justice Antonin Scalia.
[31][32] Attorney James R. Marsh, founder of the Children's Law Center in Washington, D.C., wrote that although the Supreme Court's decision has been criticized by some, he believes it correctly enables legal personnel to fight crime networks where child pornography is made and sold.
[33] In 1994, the U.S. Court of Appeals for the 3rd Circuit ruled in United States v. Knox that the federal statute contains no requirement that genitals be visible or discernible.
The court ruled that non-nude visual depictions can qualify as lascivious exhibitions and that this construction does not render the statute unconstitutionally overbroad.