[4] Concerning the lascivious display of clothed genitalia, the U.S. Department of Justice described use of the Dost test in child pornography and 2257 documentation regulations in a 2008 rule, writing that the precedent United States v. Knox, 32 F.3d 733 (3d Cir.
[9] In United States v. Horn, the Eighth Circuit held that even if the child is acting innocently, the images can be lascivious if they are intended to be sexual.
On appeal of a court's determination that a depiction is lascivious, a de novo review is required, due to the First Amendment rights implicated.
[3] The test was criticized by NYU Law professor Amy Adler as forcing members of the public to look at pictures of children as a pedophile would in order to determine whether they are considered inappropriate.
[12] Robert J. Danay notes, "The application of these factors, as in Knox, necessitates a drawn out analysis of materials that most people would not, in the past, have considered obscene or even sexual in nature.