Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

2005

Abstract

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.

Included in

Law Commons

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.