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First Amendment and Child Pornography: Implications for Professionals Engaged in Child Protection

NCJ Number
Children's Legal Rights Journal Volume: 23 Issue: 1 Dated: Spring 2003 Pages: 2-16
Frank E. Vandervort J.D.
Date Published
15 pages
This article explores the first amendment and relevant Supreme Court decisions regarding child pornography.
The protection of children from sexual abuse should be a multidisciplinary effort, bringing together professionals from many fields. In fact, a requirement of the Child Abuse Prevention and Treatment Act (CAPTA) is that States assemble a multidisciplinary team to deal with cases of child maltreatment; the receipt of Federal funds for child welfare programs is dependant upon this multidisciplinary approach. As such, a review of legal opinions and mandates regarding child sexual abuse and child pornography is appropriate given that professionals outside of the legal field often work in concert with lawyers, judges, and the like. The article focuses on the recent decision in Ashcroft v. Free Speech Coalition, which struck down parts of the Child Pornography Prevention Act of 1996 as unconstitutional. The legal background leading to this decision is reviewed, namely the first amendment and other Supreme Court decisions regarding child pornography. The article reviews cases regarding the Supreme Courts’ decision in 1957 which protected pornography but prohibited obscenity. However, given the greater responsibility to protect children, the Court has prohibited pornography that depicts children, without first establishing that it is obscene. After describing the legal background, the article explores the decision in Ashcroft v. Free Speech Coalition, which grappled with issues involving whether the virtual depiction of children in a sexually explicit manner is prohibited by law, even if such material is not defined as obscene. In this case, certain protections are afforded individuals under the first amendment of the United States Constitution, and as such, parts of the contested 1996 CPPA were ruled unconstitutional. The article concludes with a discussion of the implications of these rulings for professionals involved in the protection of children, including a discussion of how the Court rulings affect policy, prevention programs, reporting and investigation functions, and treatment. 183 Endnotes