Order Code 95-406 A
Report for Congress
Received through the CRS Web
Child Pornography:
Constitutional Principles
and Federal Statutes
Updated November 13, 2002
Henry Cohen
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Child Pornography: Constitutional Principles and
Federal Statutes
Summary
The First Amendment provides: “Congress shall make no law . . . abridging the
freedom of speech, or of the press.” Although the First Amendment, in general,
protects pornography, the Supreme Court has held that it does not protect two types
of pornography: obscenity and child pornography. Consequently, the government
may, and has, banned them.
Child pornography is material that visually depicts sexual conduct by children.
It is unprotected by the First Amendment even when it is not legally obscene; in
addition, the Supreme Court has held that, although the Constitution protects the
right to possess obscene material in one’s own home (even though it is otherwise
unprotected), the Constitution does not protect the right to possess child pornography
in one’s own home.
Federal statutes, in addition to making it a crime to transport or receive child
pornography in interstate or foreign commerce, prohibit, among other things, the use
of a minor in producing pornography, and provide for criminal and civil forfeiture of
real and personal property used in making child pornography, and of the profits of
child pornography. Finally, child pornography crimes are included among the
predicate offenses that may give rise to a violation of the Federal Racketeer
Influenced and Corrupt Organizations Act.
The Child Pornography Prevention Act of 1996, P.L. 104-208, 110 Stat. 3009-
26, added a definition of “child pornography” that include visual depictions of what
appears to be a minor engaging in explicit sexual conduct, even if no actual minor
was used in producing the depiction. On April 16, 2002, in Ashcroft v. Free Speech
Coalition, the Supreme Court held this provision unconstitutional to the extent that
it prohibited pictures that were not produced with actual minors. (This case is
discussed under “Section 2256,” below.) In response to Ashcroft, bills were
introduced in the House and Senate that would continue to ban some child
pornography that was produced without an actual minor; on June 25, 2002, the House
passed one such bill: H.R. 4623, 107th Congress.
The Children’s Internet Protection Act (CIPA), P.L. 106-554 (2000), amended
three federal statutes to provide that a school or library may not use funds it receives
under these statutes to purchase computers used to access the Internet, or to pay the
direct costs of accessing the Internet, and may not receive universal service discounts,
unless the school or library enforces a policy to block or filter minors’ Internet access
to visual depictions that are obscene, child pornography, or harmful to minors; and
enforces a policy to block or filter adults’ Internet access to visual depictions that are
obscene or child pornography. In May, 2002, a three-judge federal district court held
CIPA unconstitutional and enjoined its enforcement on the ground that “the filtering
software mandated by CIPA will block access to substantial amounts of
constitutionally protected speech.” In November, 2002, the U.S. Supreme Court
agreed to review the case.

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Contents
Constitutional Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Obscenity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Child Pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Federal Child Pornography Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. 18 U.S.C. §§ 2251-2259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2251A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2252A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2260 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
B. Children’s Internet Protection Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
C. RICO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Recently Enacted Federal Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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Child Pornography: Constitutional Principles
and Federal Statutes
Constitutional Principles
The First Amendment provides: “Congress shall make no law . . . abridging the
freedom of speech, or of the press.”1 In general, the First Amendment protects
pornography, with this term being used to mean any erotic material. The Supreme
Court, however, has held that the First Amendment does not protect two types of
pornography: obscenity and child pornography. Consequently, they may be banned
on the basis of their content, and federal law prohibits the mailing of child
pornography as well as its transport or receipt in interstate or foreign commerce by
any means, including by computer.
A. Obscenity2
Most pornography is not legally obscene; to be obscene, pornography must, at
a minimum, “depict or describe patently offensive ‘hard core’ sexual conduct.”
Miller v. California, 413 U.S. 15, 27 (1973). The Supreme Court has created a three-
part test, known as the Miller test, to determine whether a work is obscene. The
Miller test asks:
(a) whether the “average person applying contemporary community standards”
would find that the work, taken as a whole, appeals to the prurient interest; (b)
whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (c) whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.3
1 Despite its literal words, the First Amendment applies not just to Congress, but equally to
all branches of the federal government and the state governments. Gitlow v. New York, 268
U.S. 652 (1925).
2 For additional information, see, Obscenity and Indecency: Constitutional Principles and
Federal Statutes (CRS Report 95-804 A).
3 413 U.S. at 24 (citation omitted). In Pope v. Illinois, 481 U.S. 497, 500 (1987), the
Supreme Court clarified that “the first and second prongs of the Miller test — appeal to
prurient interest and patent offensiveness — are issues of fact for the jury to determine
applying contemporary community standards.” However, as for the third prong, “[t]he
proper inquiry is not whether an ordinary member of any given community would find
serious literary, artistic, political, or scientific value in allegedly obscene material, but
whether a reasonable person would find such value in the material, taken as a whole.”

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CRS-2
The Supreme Court has allowed one exception to the rule that obscenity, as
defined by Miller, is not protected under the First Amendment. In Stanley v.
Georgia, 394 U.S. 557, 568 (1969), the Court held that “mere private possession of
obscene material” is protected. The Court wrote:
Whatever may be the justifications for other statutes regulating obscenity, we do
not think they reach into the privacy of one’s own home. If the First Amendment
means anything, it means that a State has no business telling a man, sitting alone
in his house, what books he may read or what films he may watch.
Id. at 565.4
B. Child Pornography
Child pornography is material that “visually depicts sexual conduct by children
below a specified age.”5 New York v. Ferber, 458 U.S. 747, 764 (1982) (emphasis
in original). It is unprotected by the First Amendment even when it is not legally
obscene; i.e., child pornography need not meet the Miller test to be banned.6
However, the Court held in Ferber that, as with obscenity,
the conduct to be prohibited must be defined by the applicable state law,7 as
written or authoritatively construed. . . . The category of “sexual conduct”
proscribed must also be suitably limited and described.
Id. at 764.
In Massachusetts v. Oakes, 491 U.S. 576, 579 (1989), the Supreme Court
considered a Massachusetts statute that made it a crime knowingly to permit a child
under 18 “to pose or to be exhibited in a state of nudity . . . for purpose of visual
representation or reproduction in any book, magazine, pamphlet, motion picture film,
photograph, or picture.” The defendant in the case had been convicted for taking
topless photographs of his 14-year-old stepdaughter, but the Massachusetts Supreme
Judicial Court reversed on the ground that the statute was overbroad because it would
4 Subsequently, however, the Supreme Court rejected the claim that under Stanley there is
a constitutional right to provide obscene material for private use (United States v. Reidel,
402 U.S. 351 (1971)), or to acquire it for private use (United States v. 12 200-Ft. Reels of
Film, 413 U.S. 123 (1973)). The right to possess obscene material does not imply the right
to provide or acquire it, because the right to possess it “reflects no more than . . . the law’s
‘solicitude to protect the privacies of the life within [the home].’” Id. at 127.
5 Federal law now prohibits such depictions even if actual minors were not involved in
creating them; it is uncertain whether such depictions are protected by the First Amendment.
See the discussion of §§ 2252A and 2256, below.
6 In Ferber, the Court noted that a trier of fact “need not find that the material appeals to the
prurient interest of the average person; it is not required that sexual conduct portrayed be
done so in a patently offensive manner; and the material need not be considered as a whole.”
458 U.S. at 764.
7 Or federal law. For the federal statutory definition of “child pornography,” see 18 U.S.C.
§ 2256, discussed below.

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CRS-3
make “a criminal of a parent who takes a frontal view picture of his or her naked one-
year-old running on a beach or romping in a wading pool.” Id. at 581. While the
case was pending before the Supreme Court, the statute was amended to allow
convictions only where nude pictures are taken “with lascivious intent.” This
amendment made moot the question of whether the statute under which the defendant
was convicted was overbroad. However, it left open the question whether the statute
under which the defendant was convicted could constitutionally be applied to him;
i.e., whether his conduct was protected by the First Amendment. The Supreme Court
remanded the case for this to be decided.
In Osborne v. Ohio, 495 U.S. 103 (1990), the Supreme Court held that the
Stanley v. Georgia right to possess obscene material in one’s home does not extend
to child pornography. The difference is that:
In Stanley, Georgia primarily sought to proscribe the private possession of
obscenity because it was concerned that obscenity would poison the minds of its
viewers. We responded that “[w]hatever the power of the state to control public
dissemination of ideas inimical to the public morality, it cannot constitutionally
premise legislation on the desirability of controlling a person’s private thoughts.”
Id. at 109 (citations omitted).
In Osborne, by contrast,
the State does not rely on a paternalistic interest in regulating Osborne’s mind.
Rather, Ohio has enacted [its statute prohibiting possession of child
pornography] in order to protect the victims of child pornography; it hopes to
destroy a market for the exploitative use of children. . . . It is . . . surely
reasonable for the State to conclude that it will decrease the production of child
pornography if it penalizes those who possess and view the product, thereby
decreasing demand. . . . Other interests also support the Ohio law. First, as
Ferber recognized, the materials produced by child pornography permanently
record the victim’s abuse. The pornography’s continued existence causes the
child victims continuing harm by haunting the children in years to come. The
State’s ban on possession and viewing encourages possessors of these materials
to destroy them. Second, encouraging the destruction of these materials is also
desirable because evidence suggests that pedophiles use child pornography to
seduce other children into sexual activity.
Id. at 109-111 (citations omitted).
In Ashcroft v. Free Speech Coalition, 535 U.S.__, 122 S. Ct. 1389, 152 L.Ed.2d
403 (2002), the Supreme Court held that child pornography that is produced without
using an actual minor is protected by the First Amendment. We discuss this case,
and note the bills that were introduced in response to it, in the section below titled
“Section 2256.”

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CRS-4
Federal Child Pornography Statutes
Federal child pornography statutes are codified at 18 U.S.C. §§ 2251-2259.
These sections, as well as selected court cases that have ruled on their
constitutionality or interpreted them, are summarized in numerical order. After that,
the Children’s Internet Protection Act and Federal Racketeer Influenced and Corrupt
Organizations Act (RICO) are considered, to the extent that they incorporate child
pornography crimes.
A. 18 U.S.C. §§ 2251-2259
Section 2251. Sexual exploitation of children. Subsection (a) of this section,
as amended by P.L. 105-314, § 201 (1998), makes it a crime to use a minor in child
pornography if the pornography has one of three specified connections to commerce.
The phrase “use a minor in child pornography” in the preceding sentence is a
synopsis of the following statutory language:
employs, uses, persuades, induces, entices, or coerces any minor to engage in, or
. . . transports any minor in interstate or foreign commerce, or in any Territory
or Possession of the United States, with the intent that such minor engage in, any
sexually explicit conduct for the purpose of producing any visual depiction of
such conduct . . . .
Subsection (b), as amended by P.L. 105-314, § 201 (1998), makes it a crime for
any “parent, legal guardian, or person having custody or control of a minor”
knowingly to permit such minor to engage in child pornography that has one of three
specified connections to commerce.
Subsection (c) makes it a crime for any person knowingly to publish notices or
advertisements for child pornography or for “participation in any act of sexually
explicit conduct by or with any minor for the purpose of producing a visual depiction
of such conduct,” if “such person knows or has reason to know that such notice or
advertisement will be transported in interstate or foreign commerce by any means
including by computer or mailed,” or if “such notice or advertisement is transported
[apparently even without the defendant’s knowing or having reason to know] in inter-
state or foreign commerce by any means including by computer or mailed.”8
Subsection (d) sets forth the criminal penalties for violations of subsections (a),
(b), or (c); it was amended by P.L. 104-208, § 121, and by P.L. 105-314, § 201, to
increase the penalties.
Section 2251A. Selling or Buying of Children. This section imposes a
minimum 20-year sentence on “[a]ny parent, legal guardian, or other person having
custody or control of a minor who sells or otherwise transfers custody or control of
8 Italics added. The provision seems redundant (with knowledge never required) because,
for a person to know that an advertisement will be transported logically requires that it be
transported. Perhaps what it means is that the person expect it to be transported, whether
or not it actually is.

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CRS-5
such minor, or offers to sell or otherwise transfer custody or control of such minor”
(1) with knowledge that, as a consequence of the sale or transfer, the minor will be
portrayed in child pornography, or (2) with intent to promote the participation of the
minor in child pornography. It imposes the same sentence on the person who
purchases or otherwise obtains custody or control of the child for one of these
purposes. “Custody or control” is defined to include “temporary supervision or
responsibility for a minor whether legally or illegally obtained.” 18 U.S.C.
§ 2256(7).
In order for a person to be guilty under § 2251A, there must be a nexus with
interstate or foreign commerce, namely that, in the course of the offense, either the
minor or the defendant have traveled in interstate or foreign commerce, the offer for
transfer of custody or control have been “communicated or transported in interstate
or foreign commerce by any means including by computer or mail,” or the offense
have been committed in a territory or possession of the United States.
Section 2252. Certain activities relating to material involving the sexual
exploitation of minors. This section, unlike § 2252A, applies only to child
pornography that depicts actual children. It makes it a crime (1) knowingly to
transport or ship child pornography by any means, including by computer, in
interstate commerce or foreign commerce, or to mail it (even intrastate), (2)
knowingly to receive or distribute child pornography that has been transported or
shipped in interstate or foreign commerce by any means including by computer, or
mailed, and (3) knowingly to reproduce child pornography for distribution in
interstate or foreign commerce by any means including by computer, or through the
mails.
Section 2252 also makes it a crime, in two situations, knowingly to possess “1
or more books, magazines, periodicals, films, video tapes, or other matter which
contain any visual depiction . . . of a minor engaging in sexually explicit conduct.”
It shall be an affirmative defense, however, that the defendant “possessed less than
three matters containing [such] visual depiction” and “promptly and in good faith,
and without retaining or allowing any person other than a law enforcement agency,
to access any [such] visual depiction . . . (A) took reasonable steps to destroy each
such visual depiction; or (B) reported the matter to a law enforcement agency and
afforded that agency access to each such visual depiction.”9
The two situations in which the possession crime and affirmative defense apply
are: (1) “in the special maritime and territorial jurisdiction of the United States, or on
any land or building owned by, leased to, or otherwise used by or under the control
of the Government of the United States, or in the Indian country as defined in section
1151 of this title,” and (2) if the material “has been mailed, or has been shipped or
transported in interstate or foreign commerce, or . . . was produced using materials
which have been mailed or so shipped or transported, by any means including by
computer.”
9 P.L. 105-314, § 203(a), changed “3 or more” to “1 or more” and added the affirmative
defense.

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CRS-6
In the most natural grammatical reading of § 2252, the word “knowingly”
applies to transporting, shipping, receiving, or distributing child pornography, but
does not require that the person doing these things know that the material is child
pornography. Nevertheless, in United States v. X-Citement Video, Inc., 513 U.S. 64
(1994), the Supreme Court held that the statute must be read to require that the
defendant knew that the material depicted sexually explicit conduct and that at least
one of the performers was a minor. The Court read the statute this way “because of
anomalies that would result from [the most natural grammatical reading of the
statute], and because of the respective presumptions that some form of scienter
[knowledge] is to be implied in a criminal statute even if not expressed, and that a
statute is to be construed where fairly possible so as to avoid substantial
constitutional questions.” Id. at 68-69.
As for anomalies that would result from limiting the application of “knowingly”
to the acts of transporting, shipping, receiving, and distributing, the Court observed
that doing so would make the statute apply to a retail druggist who returns an
uninspected roll of developed film to a customer, and would make it apply to a new
resident of an apartment who receives the mail for the prior resident and stores it
unopened. As for constitutional questions to be avoided, in Smith v. California, 361
U.S. 147, 153 (1959), the Supreme Court held that the First Amendment prohibits
prosecution of a book distributor for possession of an obscene book unless the
distributor has “knowledge of the contents of the book.”
In United States v. Knox, the defendant was convicted of violating § 2252 for
possessing videotapes that focused on the genitalia and pubic area of minor females,
even though those body parts were covered by opaque clothing.10 The Court of
Appeals for the Third Circuit affirmed, and the Supreme Court agreed to hear the
case, but the Solicitor General filed a brief for the United States agreeing with the
defendant that the statute did not apply to depictions of clothed children. In
November 1993, the Supreme Court sent the case back to the Third Circuit for
reconsideration in light of the Solicitor General’s opinion. The Third Circuit,
nevertheless, in June 1994, reaffirmed Knox’s conviction. Knox again asked the
Supreme Court to hear the case, and this time the Solicitor General agreed with the
Third Circuit that the statute applied to depictions of clothed children. The Supreme
Court, however, declined to review the case, and Knox’s conviction stands.
Between the Supreme Court’s two actions, Congress apparently amended the
statute to apply explicitly to depictions of clothed children. P.L. 103-322,
§ 160003(a) (1994), states:
The Congress declares that in enacting sections 2252 and 2256 of title 18,
United States Code, it was and is the intent of Congress that —
(1) the scope of “exhibition of the genitals or pubic area” in section
2256(2)(E), in the definition of “sexually explicit conduct”, is not limited to nude
10 977 F.2d 815 (3d Cir. 1992), vacated and remanded, 510 U.S. 375 (1993); 32 F.3d 733
(3d Cir. 1994), cert. denied, 513 U.S. 1109 (1995). For additional information on the Knox
case, see, The Knox “Clothed Children” Child Pornography Case and the Congressional
Response, CRS Report 94-753 A (Jan. 30, 1995).

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CRS-7
exhibitions or exhibitions in which the outlines of those areas were discernible
through clothing; and
(2) the requirements in section 2252(a)(1)(A), (2)(A), (3)(B)(i), and
(4)(B)(i) that the production of a visual depiction involve the use of a minor
engaging in “sexually explicit conduct” of the kind described in section
2256(2)(E) are satisfied if a person photographs a minor in such way as to exhibit
the child in a lascivious manner.11
11 18 U.S.C. § 2252 note. Congress’s expression of the intent of an earlier Congress has no
legal effect, as statutory interpretation is the province of the judiciary. Congress may, of
course, amend a statute prospectively, but it does not often do so by “declaring” the intent
of Congress with respect to a statute; rather, it changes the language of a statute. One might
argue, therefore, that, in this instance, Congress was merely advising the courts as to how
to interpret the earlier statute and was not amending it. However, for two reasons, the better
view seems to be that it was amending the statute. First, in Stockdale v. Insurance
Companies, 20 Wall. (87 U.S.) 323, 331, 332 (1874), the Supreme Court addressed a statute
that provided that an earlier statute “shall be construed to . . . .” Noting that there would be
no resistance to the statute “[b]ut for the unfortunate and unnecessary use of the word
‘construe,’” the Court wrote:
[A] legislative body may by statute declare the construction of previous statutes
so as to bind the courts in reference to all transactions occurring after the passage
of the law . . . . [W]here it can exercise a power by passing a new statute . . . the
form of words which it uses to put this power in operation cannot be material, if
the purpose is clear, and that purpose is within the power. . . . Are we captiously
to construe the use of the word “construe” as an invasion of the judicial function
where the effect of the statute and the purpose of the statute are clearly within the
legislative function?
Second, the subsection in question in the 1994 legislation (subsection (a) of section 160003)
is headed “Declaration,” whereas the following subsection (subsection (b) of section
160003), as well as the previous section (section 160002), are headed “Sense of the
Congress.” A court therefore would likely hold that Congress would have used the phrase
“Sense of the Congress” in subsection (a) of section 160003 as well if it had not meant to
amend the statute.
Because the two provisions that were headed “Sense of the Congress” concern child
pornography, we quote them in their entirety here:
Sec. 160002. It is the sense of the Congress that each State that has not yet done
so should enact legislation prohibiting the production, distribution, receipt, or
simple possession of materials depicting a person under 18 years of age engaging
in sexually explicit conduct (as defined in section 2256 of title 18, United States
Code) and providing for a maximum imprisonment of at least 1 year and for the
forfeiture of assets used in the commission or support of, or gained from, such
offenses.
Sec. 160003(b). It is the sense of the Congress that in filing its brief in United
States v. Knox, No. 92-1183, and thereby depriving the United States Supreme
Court of the adverseness necessary for full and fair presentation of the issues
(continued...)

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CRS-8
Section 2252A . This section is part of the Child Pornography Prevention Act
of 1996 (CPPA), which was added by P.L. 104-208, 110 Stat. 3009-26. The CPPA
added a definition of “child pornography” to 18 U.S.C. § 2256, which provides
essentially that an actual minor need not be used in creating a depiction in order for
the depiction to constitute child pornography. This definition, including its
constitutionality, is discussed below under § 2256.
With respect to child pornography as so defined, § 2252A imposes essentially
the same prohibitions as § 2252, which were described above. This includes, in the
same two situations as in § 2252, the crime of knowing possession and the
affirmative defense to this crime. However, instead of, like § 2252, outlawing
knowing possession of “1 or more books,” etc., § 2252A outlaws knowing possession
of “any book, magazine, periodical, film, videotape, computer disk, or any other
material that contains an image of child pornography.”12
Section 2253. Criminal forfeiture. This section provides for criminal
forfeiture in child pornography cases. Specifically, it provides that a person
convicted of violating 18 U.S.C. §§ 2251, 2251A, 2252, 2252A, or 2260, shall forfeit
to the United States (1) the child pornography involved in the violation, (2) property,
real or personal, constituting or traceable to gross profits or other proceeds obtained
from the offense, and (3) property, real or personal, used or intended to be used to
commit or to promote the commission of the offense.13
The right of the United States to the property vests upon violation of a child
pornography statute, not upon conviction. Therefore, property that was transferred
between the violation and the conviction belongs to the United States, and shall also
be forfeited. However, the statute contains an exception precluding forfeiture if the
person to whom the property was transferred establishes that at the time of purchase
he “as reasonably without cause to believe that the property was subject to
forfeiture.” Thus, if a person is convicted and the money he paid his lawyer to
defend him can be traced to gross profits from the sale of obscene material, the
lawyer may be required to forfeit the money unless he can convince the court that he
had no reasonable cause to believe that the money was subject to forfeiture.14 In
Caplin & Drysdale v. United States, 491 U.S. 617 (1989), the Supreme Court held
that forfeiture of lawyers’ fees under the federal drug forfeiture statute does not
11 (...continued)
arising in the case, the Department of Justice did not accurately reflect the intent
of Congress in arguing that “the videotapes in [the Knox case] constitute
‘lascivious exhibition[s] of the genitals or pubic area’ only if those body parts are
visible in the tapes and the minors posed or acted lasciviously.”
12 P.L. 105-314, § 203(b), changed “3 or more images” to “an image” and added the
affirmative defense.
13 P.L. 105-314, § 602, added the reference in § 2253 to §§ 2252A and 2260.
14 The lawyer could argue that the money came from a source independent of his client’s
alleged criminal activity; it seems less certain whether he could argue that, at the time his
client paid him, he (the lawyer) was reasonably without cause to believe that the money was
subject to forfeiture because he reasonably believed that his client would be found not
guilty.

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violate the Due Process Clause of the Fifth Amendment or criminal defendants’ Sixth
Amendment right to counsel of choice.
Section 2253(c) provides that, prior to conviction, upon application of the
United States, a court may enter a restraining order or injunction “to preserve the
availability of property . . . for forfeiture.” Section 2253(d) authorizes a court to
issue a warrant for the seizure of property upon the government’s showing of
“probable cause to believe that the property to be seized would, in the event of
conviction, be subject to forfeiture and that an order under subsection (c) of this
section may not be sufficient to assure the availability of the property for forfeiture.”
In American Library Association v. Thornburgh, a federal district court declared
these provisions unconstitutional insofar as they allow “seizure or restraint . . .
without a prior adversarial hearing.”15 The court based this holding on the Supreme
Court’s decision in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989), which is
discussed in the section on RICO, below.
The court also declared two aspects of the post-conviction criminal forfeiture
provisions unconstitutional. However, on appeal, the United States Court of Appeals
for the District of Columbia vacated the entire decision, without addressing its
merits. Its reason, with respect to § 2253, was that, because the government had not
threatened the plaintiffs with enforcement, the plaintiffs’ claims were not ripe for
judicial resolution.16
Section 2254. Civil Forfeiture. This section provides for civil forfeiture in
connection with violations of 18 U.S.C. §§ 2251, 2251A, 2252, 2252A, and 2260.17
The property that is subject to civil forfeiture under § 2254 is, as with criminal
forfeiture under § 2253, (1) the child pornography involved in the violation, (2)
property, real or personal, constituting or traceable to gross profits or other proceeds
obtained from the offense, and (3) property, real or personal, used or intended to be
used to commit or to promote the commission of the offense. However, unlike
criminal forfeiture, civil forfeiture is not permitted as to property other than child
pornography itself if the owner of the property proves that the offense was committed
without his knowledge or consent.
To proceed with a civil forfeiture, the government need not, as with a criminal
forfeiture, convict a child pornographer of a violation of an offense under § 2251 or
one of the other included sections of the law. The government need only prove, by
the burden of proof applicable in civil cases, that at least one of the three sections had
been violated. The burden of proof applicable in civil cases is generally proof by a
“preponderance of the evidence,” but an argument may be made that proof by “clear
and convincing evidence” may be required in cases that implicate First Amendment
15 713 F. Supp. 469, 485 (D.D.C. 1989), vacated sub nom. American Library Association
v. Barr, 956 F.2d 1178 (D.C. Cir. 1992).
16 The district court also struck down the recordkeeping requirements of 18 U.S.C. § 2257;
this aspect of the decision is discussed below.
17 P.L. 105-314, § 603, added the reference in § 2254 to §§ 2252A and 2260.

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rights.18 This would still be a lesser burden than the standard required for criminal
forfeitures, which is proof beyond a reasonable doubt.
As it did with respect to the criminal forfeiture provision, the district court in
American Library Association v. Thornburgh, supra, declared portions of the civil
forfeiture provision unconstitutional, but, as noted, the court of appeals vacated the
entire decision.
Section 2255. Civil remedy for personal injuries. This section provides
that a minor who suffers personal injury as the result of a violation of various laws,
including §§ 2251, 2251A, 2252, 2252A, and 2260, may bring a civil action for
actual damages (which shall be deemed to be at least $50,000) plus the cost of the
suit, including a reasonable attorney’s fee.19
Section 2256. Definitions for chapter. This section defines terms used in
18 U.S.C. §§ 2251-2259. It defines “sexually explicit conduct” (conduct in which
one may not depict minors engaging) as “actual or simulated”
(A) sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same
or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or pubic area of any
person.
Paragraph (E) has been supplemented by § 2252 note, set forth in the discussion
of the Knox case, above, which indicates that “lascivious exhibition” is not limited
to nudity.
The Child Pornography Protection Act of 1996 (CPPA), P.L. 104-208, 110 Stat.
3009-26, added a definition of “child pornography” to section 2256. The term, which
is used in 18 U.S.C. § 2252A, includes visual depictions that do not portray an actual
child. The definition reads:
“child pornography” means any visual depiction, including any photograph, film,
video, picture, or computer or computer-generated image or picture, whether
made or produced by electronic, mechanical, or other means, of sexually explicit
conduct, where –
(A) the production of such visual depiction involves the use of a minor engaging
in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging in sexually
explicit conduct;
18 See, Harte-Hanks, Inc. v. Connaughton, 491 U.S. 657, 661 n.2 (1989); California v.
Mitchell Brothers’ Santa Ana Theater, 454 U.S. 90, 93 (1981); Rosenbloom v. Metromedia,
Inc., 403 U.S. 29, 52 (1971).
19 P.L. 105-314, § 605, added the reference in § 2255 to §§ 2251A, 2252A, and 2260.

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(C) such visual depiction has been created, adapted, or modified to appear that
an identifiable minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted, presented, described, or
distributed in such a manner that conveys the impression that the material is or
contains a visual depiction of a minor engaging in sexually explicit conduct.
The CPPA, however provides an affirmative defense that the alleged child
pornography was produced using only adults, and that “the defendant did not
advertise, promote, present, describe, or distribute the material in such a manner as
to convey the impression that it is or contains a visual depiction of a minor engaging
in sexually explicit conduct.” 18 U.S.C. § 2252A(c). For a defendant charged only
with possession of child pornography, there is, as noted above, an affirmative defense
that the defendant (1) possessed fewer than three images of child pornography, and
(2) promptly and in good faith destroyed or reported the images to a law enforcement
agency. 18 U.S.C. § 2252A(d).
On April 16, 2002, in Ashcroft v. Free Speech Coalition, the Supreme Court
struck down paragraphs (B) and (D) of the definition of “child pornography” quoted
above. Paragraphs (A), which covers images of actual children engaged in sexually
explicit conduct, and paragraph (C), which covers images of actual children
“morphed” to make it appear as if the children are engaged in sexually explicit
conduct, were not in issue. Paragraphs (B) and (D), by contrast, cover pornography
that was produced without the use of actual children.
In Ashcroft v. Free Speech Coalition, the Supreme Court observed that statutes
that prohibit child pornography that use real children are constitutional because they
target “[t]he production of the work, not its content.” 122 S. Ct. at 1401; see also id.
at 1397. The CPPA, by contrast, targeted the content, not the means of production.
“Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of
children, as were the materials in Ferber.” Id. at 1402; see also id. at 1401.
The government’s rationales for the CPPA included that “[p]edophiles might
use the materials to encourage children to participate in sexual activity” and might
“whet their own sexual appetites” with it, “thereby increasing . . . the sexual abuse
and exploitation of actual children.” Id. at 1397. The Court found these rationales
inadequate because “[t]he evil in question depends upon the actor’s unlawful
conduct, conduct defined as criminal quite apart from any link to the speech in
question. . . . The government ‘cannot constitutionally premise legislation on the
desirability of controlling a person’s private thoughts. . . . The government may not
prohibit speech because it increases the chance an unlawful act will be committed ‘at
some indefinite future time.’ . . . Without a significantly stronger, more direct
connection, the Government may not prohibit speech on the ground that it may
encourage pedophiles to engage in illegal conduct.” Id. at 1403.

The government also argued that the existence of “virtual” child pornography
“can make it harder to prosecute pornographers who do use real minors,” because,
“[a]s imaging technology improves . . . , it becomes more difficult to prove that a
particular picture was produced using actual children.” Id. at 1397. “This analysis,”
the Court found, “turns the First Amendment upside down. The Government may
not suppress lawful speech as a means to suppress unlawful speech. . . . ‘[T]he

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CRS-12
possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that protected speech of others may be muted . . . .’”
Id. at 1404.
The Court also noted that, because child pornography, unlike obscenity, may
include material with serious literary, artistic, political, or scientific value, it includes
“[a]ny depiction of sexually explicit activity, no matter how it is presented . . . . The
CPPA [therefore] applies to a picture in a psychology manual, as well as a movie
depicting the horrors of sexual abuse. . . . [T]eenage sexual activity and the sexual
abuse of children . . . have inspired countless literary works.” Id. at 1400. The Court
then noted that the CPPA would make it a crime to film Shakespeare’s Romeo and
Juliet in a manner that made it appear that the teenage lovers were engaging in
sexually explicit conduct.
The majority opinion in Ashcroft v. Free Speech Coalition was written by
Justice Kennedy and joined by Justices Stevens, Souter, Ginsberg, and Breyer, with
Justice Thomas concurring. Justice O’Connor concurred insofar as the decision
struck down the prohibition of child pornography created with adults that look like
children, but dissented insofar as it struck down the ban on virtual child pornography.
Justices Rehnquist wrote a dissenting opinion joined by Justice Scalia, arguing that
the CPPA should be construed to apply only to “computer-generated images that are
virtually indistinguishable from real children engaged in sexually explicit conduct,”
and upheld as such. Id. at 1411.
In response to Ashcroft, bills were introduced in the 107th Congress that would
continue to ban some child pornography that was produced without the use of an
actual child. The Senate bills are S. 2520 and S. 2511; the House bill is H.R. 4623,
which was identical to S. 2511, but which was amended by the House Judiciary
Committee and reported on June 24, 2002 (H.Rept. 107-526), and passed by the
House without further amendment on June 25, 2002.
Section 2257. Recordkeeping requirements. This section, which was
declared unconstitutional in 1989 and amended in 1990 in order to restore it,
provides:
Whoever produces any book, magazine, periodical, film, videotape, or other
matter which —
(1) contains any visual depiction made after November 1, 1990 [prior to the
1990 amendment this date was February 6, 1978] of actual sexually explicit
conduct; and
(2) is produced in whole or in part with materials which have been mailed
or shipped in interstate or foreign commerce, or is shipped or transported
or is intended for shipment or transportation in interstate or foreign
commerce;
shall create and maintain individually identifiable records pertaining to every
performer portrayed in such visual depiction.

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Section 2257 also provides, as it did before the 1990 amendment, that these
records must include the performer’s name and date of birth, and must be made
available to the Attorney General for inspection at all reasonable times. They may
not be used directly or indirectly as evidence against any person with respect to any
violation of law. However, before the amendment, in a prosecution under sections
2251(a) or 2252, failure of the defendant to comply with the recordkeeping
requirements would raise a rebuttable presumption that the performer was a minor.
Producers are required (as they were before the 1990 amendment) to “cause to
be affixed to every copy of any matter” containing visual depictions of actual
sexually explicit conduct “a statement describing where the records required by this
section . . . may be located.”
The word “produce,” as defined by § 2257, both before and after the 1990
amendment, “includes the duplication, reproduction, or reissuing of any material.”
However, the amendment narrowed the definition, as discussed below.
In American Library Association v. Thornburgh, supra, a federal district court
struck down the original recordkeeping requirements because they “excessively
burden First Amendment material and infringe too deeply onto First Amendment
rights.” 713 F. Supp. at 473. The requirements are not “incidental burdens,” the
court wrote. It explained:
The result of the requirement that each producer along the stream of commerce
must personally contact the model or performer and personally ascertain the
model’s or performer’s age, current name, maiden name, professional name, and
other information will undoubtedly be the effective prohibition of the distribution
of much First Amendment protected material. . . . To take one example, a film
distributor would be faced with the often-insurmountable task of having to track
down personally any performer in a “lascivious” scene, even if the original
producer of the film provided the distributor with his own documentation of the
age of every performer.
Moreover, the Act applies to all depictions made since early 1978 and applies
even to images made overseas, where a large percentage of “lascivious” images
are created. To require a publisher or producer to travel to Europe or Asia to
track down every “lascivious” model or performer shown in a book, magazine,
or film originally created a decade earlier is overly burdensome.
Id. at 477 (emphasis in original). The court also held the criminal presumptions
unconstitutional on the ground that they
take away from the criminal defendant the right to be presumed innocent until
proven guilty beyond a reasonable doubt. They are unconstitutional because the
presumed fact [that the performer was a minor] does not appear more likely than
not to flow from the proven fact [that the defendant failed to keep records].
Id. at 482.
In 1990, P.L. 101-647, § 311, amended § 2257 in order to make it constitutional.
It made the law applicable only to works produced after November 1, 1990. It

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eliminated the criminal presumption as to a performer’s age that would arise from
failure to comply with the recordkeeping requirements. Instead of the presumption,
it prescribes criminal penalties for failing to comply with the recordkeeping
requirements or with the requirement that a statement as to the location of records be
affixed to every copy of visual depictions of actual sexually explicit conduct.
It also amended the statute’s definitions of “actual sexually explicit conduct”
and “produces.” As noted above, the word “produces,” as defined both before and
after the 1990 amendment, “includes the duplication, reproduction, or reissuing of
any material.” The 1990 amendment, however, provides that “produces” “does not
include mere distribution or any other activity which does not involve hiring,
contracting for [,] managing, or otherwise arranging for the participation of the
performers depicted.” Persons who engage only in the activities that are excluded
from the definition of “produces” would not have to comply with the recordkeeping
requirements. Thus, only persons who arrange for the participation of the performers
depicted would have to contact them personally to ascertain their ages and the other
information required.
In February, 1992, the D.C. Circuit found that the 1990 amendments “mooted
the question whether the recordkeeping provisions of the Child Protection Act are
constitutional,” and consequently vacated the district court’s holding that they were
unconstitutional. American Library Association v. Barr, 956 F.2d 1178, 1186 (D.C.
Cir. 1992).
In April, 1992, the Department of Justice issued a final rule implementing the
statute.20 In May, 1992, in American Library Association v. Barr, a federal district
court declared the new recordkeeping requirements unconstitutional and enjoined the
government from enforcing the Act “with respect to producers and distributors of any
material who have satisfied themselves after due diligence that such material does not
contain depictions of people under 18 years of age.”21 However, in 1994, United
States Court of Appeals for the District of Columbia reversed, finding the statute
constitutional.
The D.C. Circuit held that the recordkeeping requirements were content-neutral
incidental restrictions on speech and met the intermediate level of scrutiny applicable
to such restrictions.22 Although the statute discriminates on the basis of content in
20 57 Fed. Reg. 15017 (Apr. 24, 1992), 28 C.F.R. Part 75.
21 794 F.Supp. 412, 420 (D.D.C. 1992), rev’d sub nom. American Library Association v.
Reno, 33 F.3d 78 (D.C. Cir. 1994), cert. denied, 515 U.S. 1158 (1995).
22 The recordkeeping requirements apply to speech that is protected by the First Amendment,
not just to child pornography. A statute that regulates protected speech on the basis of its
content must pass “strict scrutiny” to be constitutional, which means that it must “promote
a ‘compelling interest’ and employ ‘the least restrictive means to further the articulated
interest.’ In contrast, ‘regulations that are unrelated to the content of speech are subject to
an intermediate level of scrutiny . . . .’ Thus, ‘content-neutral regulations that have an
incidental effect on First Amendment rights will be upheld if they further an important or
substantial governmental interest.’” 33 F.3d at 84 (citations omitted). Content-neutral
(continued...)

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that it applies only to visual depictions of sexually explicit conduct, the court
emphasized “the key role of the Government’s purpose in determining whether a
particular statute is content based or content neutral.” Id. at 84. In this case,
“Congress enacted the Act not to regulate the content of sexually explicit materials,
but to protect children by deterring the production and distribution of child
pornography.” Id. at 86. The court of appeals drew an analogy to City of Renton v.
Playtime Theaters, Inc., 475 U.S. 41 (1986), in which the Supreme Court upheld a
zoning ordinance that “treats theaters that specialize in adult films differently from
other kinds of theaters.” Id. at 85. Although the ordinance discriminated on the basis
of content, “the Court concluded that it was ‘aimed not at the content of the films
shown at “adult motion picture theaters,” but rather at the secondary effects of such
theaters on the surrounding community.’” Id. (emphasis in original).
Another federal appeals court denied a preliminary injunction against
enforcement of § 2257, finding that the plaintiff had not demonstrated a substantial
likelihood of success on its First Amendment claim. Connection Distributing Co. v.
Reno, 154 F.3d 281 (6th Cir. 1998), cert. denied, 526 U.S. 1087 (1999).
Section 2258. Failure to report child abuse. This section, added in 1990
by Public Law 101-647, § 226(g)(1), provides that a person who, while engaged in
a specified professional capacity or activity on federal land or in a federally operated
or contracted facility, learns of facts that give him or her reason to suspect child
abuse, and fails to make a timely report of it, shall be guilty of a Class B
misdemeanor. The specified professionals are those described in 42 U.S.C.
§ 13031(b), and include, among others, medical personnel, social workers, teachers,
law enforcement personnel, foster parents, and commercial film and photo
processors.
Section 2259. Mandatory restitution. This section requires courts to order
a defendant convicted of a federal child pornography crime to pay to the victim the
full amount of the victim’s losses.
Section 2260. Production of sexually explicit depictions of a minor for
importation into the United States.23 This section, added in 1994 by P.L. 103-322,
§ 160001, makes it a crime for a person, outside the United States, to employ, use,
persuade, induce, entice, or coerce any minor to engage in, or transport a minor with
the intent that the minor engage in, any sexually explicit conduct, for the purpose of
producing a visual depiction of such conduct for importation into the United States
or into waters within twelve miles of the coast of the United States. It also makes it
a crime for a person, outside the United States, knowingly to receive, transport, ship,
distribute, sell, or possess with the intent to transport, ship, sell, or distribute any
visual depiction of a minor engaging in sexually explicit conduct (if the product
22 (...continued)
regulations must be “narrowly tailored,” but need not be the least restrictive means to further
the governmental interest involved. Ward v. Rock Against Racism, 491 U.S. 781, 798-799
(1989).
23 When it was enacted, this section was numbered “2258,” despite there already being a
section with that number, but was renumbered “2260” by P.L. 104-294, § 601(i)(1).

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involved the use of a minor engaging in sexually explicit conduct), intending that the
visual depiction be imported into the United States or into waters within twelve miles
of the coast of the United States.
B. Children’s Internet Protection Act24
The Children’s Internet Protection Act (CIPA), P.L. 106-554 (2000), amended
three federal statutes to provide that a school or library may not use funds it receives
under these statutes to purchase computers used to access the Internet, or to pay the
direct costs of accessing the Internet, and may not receive universal service discounts
(other than for telecommunications services), unless the school or library enforces
a policy “that includes the operation of a technology protection measure” that blocks
or filters minors’ Internet access to visual depictions that are obscene, child
pornography, or harmful to minors; and that blocks or filters adults’ Internet access
to visual depictions that are obscene or child pornography.25 CIPA’s effective date
was April 20, 2001 (120 days after the date of enactment), but its enforcement against
libraries was enjoined by a three-judge federal district court in a decision we discuss
below.
The sections of CIPA (1711 and 1712) that require schools and libraries to block
or filter if they use federal funds for computers or for Internet access, provide that the
blocking or filtering technology may be disabled “to enable access for bona fide
research or other lawful purpose.” But, as obscenity, child pornography, and material
that is “harmful to minors” (insofar as it is distributed to minors), are all generally
unlawful, it is unclear what effect this provision will have.
The section of CIPA (1721) that requires schools and libraries to block or filter
if they receive universal service discounts, provides that the blocking or filtering
technology may be disabled “during use by an adult, to enable access for bona fide
research or other lawful purpose.” As obscenity and child pornography are generally
unlawful, this provision apparently authorizes the disabling, during use by an adult,
only of technology that blocks or filters material that is “harmful to minors.” Yet the
statute does not require, as to adults, blocking or filtering of material that is “harmful
to minors,” so it is not clear why a provision authorizing disabling was included –
perhaps it covers situations where a school or library has only one computer and
therefore must block material that is “harmful to minors” as to both minors and
adults.
24 P.L. 106-554 incorporated H.R. 5666, 106th Congress, Title 17 of which is CIPA.
25 Section 1711 amends Title III of the Elementary and Secondary Education Act of 1965,
20 U.S.C. §§ 6801 et seq. Section 1712 amends section 224 of the Museum and Library
Services Act, 20 U.S.C. § 9134, which is part of the Library Services and Technology Act
(LSTA), which is Title II of the Museum and Library Services Act. Section 1721 amends
section 254(h) of the Communications Act of 1934, 47 U.S.C. § 254(h), which establishes
the “universal service discount,” or “E-rate,” for schools and libraries. Only sections 1712
and 1721 (insofar as it applies to libraries) were at issue in the case before the three-judge
district court.

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Sections 1711, 1712, and 1721 all contain identical definitions of “child
pornography,”which they define to have the meaning given such term in 18 U.S.C.
§ 2256, which is discussed above.
On May 31, 2002, in American Library Association v. United States, a three-
judge federal district court in Philadelphia unanimously declared CIPA
unconstitutional and enjoined its enforcement insofar as it applies to libraries.26 The
government has a right to appeal directly to the Supreme Court, as CIPA, like the
CDA but unlike COPA, prescribes this procedure. On November 12, 2002, the Court
agreed to hear the case.
The plaintiffs in this case alleged that CIPA was unconstitutional on its face and
not merely as applied in particular circumstances. The court, therefore, “assume[d]
without deciding, for purposes of this case, that . . . plaintiffs [must] show that any
public library that complies with CIPA will necessarily violate the First Amendment
. . . .”27 It concluded that, “[b]ecause of the inherent limitations in filtering
technology, public libraries can never comply with CIPA without blocking access to
a substantial amount of speech that is . . . constitutionally protected.”28 The court
also found that “less restrictive alternatives exist that further the government’s
legitimate interest in preventing the dissemination of obscenity, child pornography,
and material harmful to minors, and in preventing patrons from being unwillingly
exposed to patently offensive, sexually explicit content.”29
C. RICO
In 1988, the Federal Racketeer Influenced and Corrupt Organizations Act
(RICO), was amended by P.L. 100-690, § 7514, to add the child pornography crimes
specified in 18 U.S.C. §§ 2251, 2251A, 2252 to the definition of “racketeering
activity” in 18 U.S.C. § 1961(1)(B). In 1994, RICO was amended by P.L. 103-322,
§ 160001, to add the crimes specified in 18 U.S.C. § 2260 to the definition. RICO
makes it a crime for any person employed by or associated with any “enterprise”
engaged in or affecting interstate or foreign commerce to participate in the affairs of
the enterprise “through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). A
“pattern of racketeering activity” means at least two acts of racketeering activity
within ten years (excluding any period of imprisonment). 18 U.S.C. § 1961(5).
Thus, if a person engages in two such activities, which may include the child
pornography offenses specified, he is subject to prosecution under RICO in addition
to, or instead of, prosecution for the particular activities.
26 201 F. Supp.2d 401 (E.D. Pa. 2002), prob. juris. noted, No. 02-361 (2002). The court
struck down § 1712(a)(2), which concerns LSTA funds, and § 1721(b) which concerns E-
rate discounts for libraries. The provisions affecting schools were not challenged.
27 Id. at 453.
28 Id.
29 Id. at 410. A fuller analysis of the decision appears in Obscenity and Indecency:
Constitutional Principles and Federal Statutes (CRS Report 95-804 A).

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RICO also provides for criminal forfeiture (18 U.S.C. § 1963). In Fort Wayne
Books, Inc. v. Indiana, 489 U.S. 46 (1989), the Supreme Court held that pretrial
seizure, under the Indiana RICO statute, of books or other expressive materials, was
unconstitutional. Although probable cause to believe that a person has committed
a crime is sufficient to arrest him, “probable cause to believe that there are valid
grounds for seizure is insufficient to interrupt the sale of presumptively protected
books and films.” Id. at 66. This presumption of First Amendment protection “is not
rebutted until the claimed justification for seizing books or other publications is
properly established in an adversary proceeding.” Id. at 67. The Federal RICO
statute, in any event, does not provide for pretrial seizure.30
In Fort Wayne Books, the Court did, however, uphold the constitutionality of
including obscenity violations among the predicate offenses under a RICO statute.
The Court rejected the argument “that the potential punishments available under the
RICO law are so severe that the statute lacks a ‘necessary sensitivity to first
amendment rights.’” Id. at 57. Further, the Court held that such obscenity violations
need not be “affirmed convictions on successive dates . . . in the same jurisdiction as
that where the RICO charge is brought.” Id. at 61.
The fact that the violations need not be affirmed convictions means that the
obscenity violations may be proved as part of the RICO prosecution; no “warning
shot” in the form of a prior conviction for obscenity is required. “As long as the
standard of proof is the proper one with respect to all the elements of the RICO
allegation — including proof, beyond a reasonable doubt, of the requisite number of
constitutionally-proscribable predicate acts — all of the relevant constitutional
requirements have been met.” Id.

There appears to be no reason why the principles the Court stated in Fort Wayne
Books with respect to obscenity violations under RICO would not apply equally to
child pornography violations.
In Alexander v. United States, 509 U.S. 544 (1993), the Supreme Court
addressed a question it had left open in Fort Wayne Books: whether there are First
Amendment limitations to RICO forfeitures of assets that consist of expressive
materials that are otherwise protected by the First Amendment. The defendant in the
case had been found guilty of selling four magazines and three videotapes that were
obscene, and, on that basis, had been convicted under RICO. He was sentenced to
six years in prison, fined $100,000, and ordered to pay the cost of prosecution,
incarceration, and supervised release. He was also ordered to forfeit all his wholesale
and retail businesses, including more than a dozen stores and theaters dealing in
sexually explicit material, all the assets of these businesses (i.e., expressive materials,
whether or not obscene), and almost $9 million. The government chose to destroy,
rather than sell, the expressive material.
The Supreme Court rejected the argument that the forfeiture of expressive
materials constitutes prior restraint, as the forfeiture order “does not forbid petitioner
from engaging in any expressive activities in the future, nor does it require him to
30 See, Fort Wayne Books, Inc. v. Indiana, 489 U.S. at 67 n.13.

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obtain prior approval for any expressive activities.” Id. at 550-551 (emphasis in
original). Consequently, the Court analyzed the forfeiture “under normal First
Amendment standards,” and could see no reason why, “if incarceration for six years
and a fine of $100,000 are permissible forms of punishment under the RICO statute,
the challenged forfeiture of certain assets directly related to petitioner’s racketeering
activity is not. . . . [T]he First Amendment does not prohibit either stringent criminal
sanctions for obscenity offenses or forfeiture of expressive materials as punishment
for criminal conduct.” Id. at 554.
The Court did, however, remand the case to the court of appeals to decide
whether the forfeiture constituted an “excessive fine” under the Eighth Amendment.
The same day, in Austin v. United States, 509 U.S. 602 (1993), the Court held that
the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of
property imposed by criminal statutes.
Recently Enacted Federal Legislation
The Sex Crimes Against Children Prevention Act of 1995, P.L. 104-71, became
law on December 23, 1995. It requires the United States Sentencing Commission to
amend the sentencing guidelines to increase the penalties for offenses under 18
U.S.C. §§ 2251 and 2252 (which are discussed in this report), to increase the
penalties under particular subdivisions of those sections if a computer was used to
commit the crime, and to increase the penalty under 18 U.S.C. § 2423 (which
prohibits transporting a minor in interstate or foreign commerce for the purpose of
prostitution, and which is not discussed in this report). It would also require the
Sentencing Commission, within 180 days after enactment of the bill, to submit a
report to Congress concerning offenses involving child pornography and other sex
offenses against children.
Section 508 of the Communications Decency Act of 1996, which is Title V of
the Telecommunications Act of 1996, P.L. 104-104, amended 18 U.S.C. § 2422,
which imposes up to five years’ imprisonment on anyone who “knowingly persuades,
induces, entices, or coerces any individual to travel in interstate or foreign commerce
. . . to engage in prostitution or in any sexual activity for which any person can be
charged with a criminal offense” (and which is not discussed in this report). The
1996 amendment added a subsection imposing up to ten years’ imprisonment on
anyone who, “using any facility or means of interstate or foreign commerce . . .
knowingly persuades, induces, entices, or coerces any individual who has not attained
the age of 18 years to engage in prostitution or any sexual act for which any person
may be criminally prosecuted . . . .”
The Child Pornography Prevention Act of 1996 (CPPA), P.L. 104-208, 110 Stat.
3009-26, added a definition of “child pornography” to 18 U.S.C. § 2256, which
provides essentially that an actual minor need not be used in creating a depiction in
order for the depiction to constitute child pornography. On April 16, 2002, in
Ashcroft v. Free Speech Coalition, the Supreme Court declared this provision
unconstitutional to the extent that it prohibited pictures that were not produced with
actual minors.

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The CPPA also added 18 U.S.C. § 2252A, and increased the criminal penalties
under 18 U.S.C. §§ 2251 and 2252.
The Protection of Children From Sexual Predators Act of 1998, P.L. 105-314,
included some sections relating to child pornography. These amended 18 U.S.C.
§§ 2252, 2252A, 2253, 2254, and 2255; these amendments are noted in this report
in the summaries of these sections. In addition, P.L. 105-314, § 604, added § 227 to
the Victims of Child Abuse Act of 1990, 42 U.S.C. §§ 13001 et seq. Section 227
provides, in part: “Whoever, while engaged in providing an electronic
communication service [as defined at 18 U.S.C. § 2510] or a remote computing
service [as defined at 18 U.S.C. § 2711] to the public, through a facility or means of
interstate or foreign commerce, obtains knowledge of facts or circumstances from
which a violation of section 2251, 2251A, 2252, 2252A, or 2260 of title 18, United
States Code, involving child pornography (as defined in section 2256 of that title),
is apparent, shall, as soon as reasonably possible, make a report of such facts or
circumstances to a law enforcement agency or agencies designated by the Attorney
General.”
The Children’s Internet Protection Act (CIPA), P.L. 106-554 (2000), amended
three federal statutes to provide that a school or library may not use funds it receives
under these statutes to purchase computers used to access the Internet, or to pay the
direct costs of accessing the Internet, and may not receive universal service discounts,
unless the school or library enforces a policy to block or filter minors’ Internet access
to visual depictions that are obscene, child pornography, or harmful to minors; and
enforces a policy to block or filter adults’ Internet access to visual depictions that are
obscene or child pornography. On May 31, 2002, a three-judge federal district court
held CIPA unconstitutional insofar as it applies to libraries. On November 12, 2002,
the Supreme Court agreed to review the case.

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