Child Pornography Laws

This article briefly overviews child pornography laws in the United States. It will discuss child pornography offenses, penalties, key case law, and other issues in this area.

Federal Child Pornography Laws

Federal law related to child sex crimes continues to develop and change. The terminology in these cases also may vary at times. Many organizations that work to end child pornography now use the term "child sexual abuse material" or CSAM instead of child pornography. Advocates find this better reflects the exploitation that occurs when children appear in pornography.

Federal crimes addressing child pornography include:

• 18 U.S.C. § 2251 — Sexual exploitation of children
• 18 U.S.C. § 2251A — Selling or buying of children
• 18 U.S.C. § 2252 — Certain activities relating to material involving the sexual exploitation of minors
• 18 U.S.C. § 2252A — Certain activities relating to material constituting or containing child pornography
• 18 U.S.C. § 2260 — Production of sexually explicit depictions of a minor for importation into the United States

A violation of federal child pornography laws is a serious crime. The FBI and other federal law enforcement agencies investigate these crimes. Federal U.S. Attorney's Office prosecutors present these cases in federal courts.

The penalties in these criminal cases are harsh. First-time offenders found guilty of producing child pornography can receive sentences between 15 and 30 years in federal prison. If offenders have prior convictions, they may face a mandatory minimum sentence of 35 years to life in prison. Those caught in possession of child pornography on their computers also get prison time. Federal judges use sentencing guidelines to help them determine an appropriate sentence.

Child pornography cases may proceed under federal law, state law, or both.

State vs. Federal Child Pornography Laws

A federal child pornography crime such as manufacturing, distribution, or possession typically requires the illegal activity to cross state lines, use the internet, or use the mail. Federal and state law enforcement authorities have regularly worked together to investigate, arrest and convict those involved in the child porn industry.

The Internet Crimes Against Children Task Force (ICAC) formed in 1998 to improve cooperation and convict those who produce and distribute child pornography via the internet. Task force members also go after sex offenders who seek minors through internet chat rooms and other settings.

While federal authorities often take the lead, state prosecutors can also pursue child pornography charges. For example, Texas Penal Code Section 43.26 creates the crime of Possession or Promotion of Child Pornography. This crime bans conduct by a person who:

• Knowingly or intentionally
• Possesses or accesses with intent to view
• Visual depictions or material
• Of a child under 18 years of age at the time
• Engaging in sexual conduct (sexual activity that includes sexual contact; actual, simulated, or deviant sexual intercourse; masturbation; and other sex acts)
• When the person knows that the material depicts a child

Texas law also says the prohibited conduct relates to depictions of a child who is

(1) recognizable as an actual person by face, likeness, or other distinguishing characteristic; and

(2) whose image as a child under 18 years old was used in creating, adapting, or modifying the visual material, including computer-generated methods, using artificial intelligence or other software.

The crime of possession or promotion of child pornography in Texas is a third-degree felony. A convicted offender can face two to 10 years in state prison, a $10,000 fine, or both. If an offender has a prior conviction, the sentence can increase to 20 years in state prison.

States have also become a forum for new laws to discourage children's access to online pornography. Louisiana passed a law in 2022 that requires online pornography websites to engage in age verification. Those who visit such sites must provide age verification showing they are 18 or older. Companies that fail to comply can face harsh civil penalties. Several states have considered similar proposals.

Mandatory Sex Offender Registration

Those convicted of a child pornography crime will also face mandatory sex offender registration. This means that their photo, address, and other information will appear in a database for monitoring and tracking sex offenders.

It is a federal and state crime to knowingly fail to register or update a sex offender listing as required by law. The public can access this information via the National Sex Offender Public Website. It includes the registry of all 50 states and the District of Columbia.

Child Pornography Laws and the First Amendment

Some people claim that the First Amendment to the United States Constitution protects child pornography. But courts have disagreed. They conclude that images of child pornography are not protected as free speech or free expression as the very existence of such material only occurs if child sex crimes happen during production.

The main precedent comes from a 1982 U.S. Supreme Court case, New York v. Ferber. In that case, the Court upheld the right of states to prohibit the distribution of child pornography. In this case, a jury convicted a bookstore owner of selling two films to an undercover police detective.

Prior case law in this area focused on obscenity being outside the protection of the First Amendment. But, the New York law did not state that an illegal visual depiction must be obscene. The New York Court of Appeals overturned the conviction based on these earlier cases.

The U.S. Supreme Court reversed. It found that such state laws don't violate the First Amendment. The Court ruled that child pornography fell outside the protections of the First Amendment even when the depictions were not obscene. It provided several reasons, including:

• The state has a compelling interest in safeguarding children's physical and psychological well-being. This includes protecting children from sexual exploitation and abuse.
• The distribution of child pornography is linked to the sexual abuse of children. Such images and recordings become a permanent record of the abuse. Their circulation repeats the harm. The problem of child pornography cannot be resolved by only ending production. To control the production, the state must also close the distribution network.
• Advertising and selling of child pornography provides an economic incentive to do it.
• The value of permitting live performances, photos, or videos of children engaged in sexual conduct is of de minimus (little) value.
• Recognizing child pornography as a category outside the protection of the First Amendment is consistent with prior court rulings.

Selfies and Social Media

When someone shares explicit images of minors on social media (including "selfies" taken by the subjects themselves), this oversharing may cross the line into laws related to child pornography.

The intent behind child pornography laws is to protect children from exploitation, but many laws don't make a distinction. For instance, a minor sending an explicit photo to another minor could open both kids up to prosecution. This is a still-evolving area of law in the wake of rapid technological advances.

What Should I Do if I Discover a Suspected Child Pornography Website?

If you come across a website that you believe is depicting child pornography, consider contacting your local law enforcement agency. While many of these crimes involve federal law, local authorities will know where to route the investigation. You can also contact:

• Federal Bureau of Investigation
• National Center for Missing & Exploited Children CyberTipLine
• Offices of the United States Attorneys

Talk to a Criminal Defense Attorney About Your Criminal Charges

Whether prosecuted under federal or state law, violations of child pornography laws can lead to prison. If someone accused you of distribution or possession of child pornography, seek legal advice. An attorney can help you protect your rights, explore defenses, and preserve evidence that may benefit your case.

Contact a criminal defense lawyer near you today.