Like Homer's hero Odysseus, who was confronted with the impossible challenge of safely navigating between Scylla, a terrifying monster, and Charybdis, a gigantic whirlpool, federal appeals courts are caught between two conflicting legal principles in cases involving the constitutionality of federal child pornography statutes. The United States Supreme Court unanimously held in New York v. Ferber that the First Amendment did not prohibit the regulation of child pornography even if it was not obscene under the famous standard set out in Miller v. California.
Child pornography is one of the most difficult problems facing judges today, both for those who are concerned about upholding First Amendment protections and for those who are concerned about protecting children from exploitation and abuse. Child pornography is on the increase in American society today. New digital technologies have made it simple and cheap to produce, disseminate, and receive still images and video. Digital technologies also make it easier for producers, purchasers and users of child pornography to remain anonymous. As a result, the availability of child pornography on the Internet has exploded in recent years.
In this essay, I assume, without attempting to prove, that child pornography is a serious social problem that the law should combat. My focus here is on the constitutional parameters of that fight: whether the commerce power authorizes the application of federal law to the wholly intrastate possession of child pornography.
Susanna Frederick Fischer, Between Scylla and Charybdis: the Disagreement Among the Federal Circuits Over Whether Federal Law Criminalizing the Intrastate Possession of Child Pornography Violates the Commerce Clause, 10 NEXUS J. OP. 99 (2005).