Child Pornography

Ashcroft v. Free Speech Coalition (P. 108)

Distinguish child pornography that depicts actual children in sexually explicit images with pornography produced without using actual children.

For example, a movie called “Sex In Junior High” is produced using 18 year old actors who appear to be 13 or 14 or by using computer generated imaging.

Now assume same movie is produced using actual 13 year old actors in sexually explicit scenes.

Under New York v. Ferber child pornography is not protected by the First Amendment - - even if not obscene under Miller - - because the state has an interest in protecting “children exploited by the production process.” (P. 108)

Imagine a very artistic version of the movie Lolita using a 12 year old girl appearing nude in sexually explicit scenes. Obscenity under Miller? No. Artistic and literary value protected.

Probably not protected under Ferber because it exploits a young child actor.

Now same movie, but it stars an 18 year old girl who looks about 12 (she is small, her hair is done in pig tails, she wears youthful clothing, carries a Barbie doll, etc.). No actual child is harmed, so the reasoning of Ferber (protecting child actors from sexual abuse by the production process) does not apply. This movie is neither obscene under Miller nor child pornography under Ferber.