Creating, distributing, and possessing child pornography is illegal under federal and state laws. However, not all images of nude children amount to child pornography, because images of naked children, without more, are protected under the First Amendment (as a form of freedom of speech). For example, a family photo of a child in the bathtub presumably would not be illegal. But, what about that “without more?” There’s the issue: the context of the photo can turn it from an innocuous snapshot into a piece of child pornography. This article is about the factors that courts consider when looking at the context of the photo.

Why Is Child Pornography Illegal?

Child pornography laws exist to protect children under the age of 18 from exploitation, which begins during the creation of the pornography itself and continues as the image circulates, possibly forever on the Internet. But the subjects of the photos are not the only ones whom the law seeks to protect: Predators use pornography as a stimulant, leading to the victimization of other children. Courts have had no trouble identifying the need to protect the physical and psychological well-being of children as higher than any First Amendment claim by a pornographer.

Child Pornography vs. Obscenity

Interestingly, child pornography has very little to do with obscenity. Obscenity laws protect the sensibilities of the audience; child pornography laws seek to protect the welfare of the subject. Let’s look first at obscenity: When determining whether a particular depiction is obscene, courts apply the test developed in 1973 by the Supreme Court, asking

• whether the average person, applying contemporary standards, would find that the work “appeals to the prurient interest”
• whether the work depicts or describes, in a “patently offensive way,” sexual conduct defined by state law, and
• whether the work, as a whole, lacks serious literary, artistic, political or scientific value.

(Miller v. California, 413 U.S. 15 91973). (For more information on obscenity laws, community standards, and free speech, see Free Speech: What Is Obscenity, and Which Community Standards Apply?)

A court or jury that considers a charge of child porn, on the other hand, will not apply these standards. They will not be concerned as to whether the work lacks serious artistic or other value. The only issue is whether the depiction constitutes a “lewd” or “lascivious” use of the child, as explained below.

What Is the Difference Between Child Pornography and Innocent Art?

When asked to define obscenity, Supreme Court Justice Potter Stewart famously replied, “I know it when I see it.” (Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).) The remark underscores the difficulty of knowing where to draw the line between protected art and obscenity, and it applies equally well to protected art versus child porn. Despite the challenge, courts have addressed the question and have agreed that a photo of a nude child that is “lewd” or “lascivious” is not a protected expression. So, how do we determine what’s lewd or lascivious?

Perhaps echoing Justice Stewart, one federal appellate court has stated that these terms are “commonsensical,” and that determining whether a photo is lewd is a decision that lay persons (people without special training) can make. (United States v. Arvin, 900 F.2d 1385, 1390 (1990).) To guide the decision maker—the judge or jury—courts have suggested applying the following six questions to the photo and the manner in which it was made. Answers to these questions will, in most cases, result in a fairly certain determination.

1. Was the focal point of the photo on the child’s genitalia or pubic area?
2. Was the setting of the photo sexually suggestive, for example, in a place or pose that people generally associate with sexual activity?
3. Was the child who is depicted in an unnatural pose, or in inappropriate attire, given the age of the child?
4. Was the child nude or fully or partially clothed?
5. Does the visual depiction suggest sexual coyness or a willingness to engage in sexual activity, and
6. Is the photo intended or designed to elicit a sexual response in the viewer?

(United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986).)

Courts are careful to point out that these questions are not exclusive—they’re guides or starting points for the judge or jury. For example, testimony from the children themselves can be very compelling. When prosecutors present photos, video or film as evidence of their charges, juries and judges apply the questions above (and perhaps go beyond them) and come to a conclusion.

Speak With an Attorney

If you are being investigated for creating, distributing, or possessing child pornography, you need to consult with an experienced criminal defense lawyer right away. This crime can be a misdemeanor or a felony, and any plea or conviction can carry serious consequences, including jail or prison time. You might be required to register as a sex offender, and evidence of a conviction (or even the fact of the investigation alone) will be used against you to devastating effect in any family court matter (such as a divorce or child custody hearing). An experienced attorney will help protect your rights and advise you as to the best course of action.