Judicial Notebook

The Child Pornography Prevention Act of 1996 (CPPA) has recently been under attack from critics who claim it violates the First Amendment right to freedom of speech.

The act defines child pornography as any real or computer-generated sexually explicit visual images that depict minors or actors who appear to be minors engaging in sexually explicit acts. Images that have been created,or modified to portray an identifiable minor partaking in sexually explicit conduct are forbidden. The act also prohibits marketing pornographic material in a manner that suggests minors were involved in its production.

In 1997, the Free Speech Coalition, a trade association that defends First Amendment rights against censorship, filed a pre-enforcement challenge against the specific provisions in the CPPA (Reno v. Free Speech Coalition, No. 00­795, CA9, 220 F3d 1113, 69 LW 3495), contending that the provisions established by the CPPA are too vague and represent prohibitions of specific speech content, which therefore violate the First Amendment. Most coalition members are artists whose works include nude and erotic photographs and paintings. The District Court for the Northern District of California argued that although children are not directly harmed in the computer generation of child pornography (e.g., the morphing of a child's face on an adult's body), the government had an interest in protecting society from the secondary effects of child pornography. Specifically, the Court expressed concern that the computer-generated material could excite pedophilic interest or could be used by pedophiles to entice or encourage children into sexual activity.

The Court ruled that the act does not violate the Constitution as it provides specific guidelines about restricted material and only prohibits material that would harm society. The Ninth Circuit Court of Appeals overturned the judgment, agreeing with the plaintiffs that the statutory language "appears to be a minor" and "conveys the impression" is vague and represents an impermissible content-specific restriction upon speech.

In addition, the appellate court expressed concern that at the time Congress enacted this legislation, no research existed that directly addressed the issue of whether child pornography produces any secondary harm. This decision has been appealed and the Supreme Court recently agreed to hear the case.

Psychological implications

Research conducted by Linz, Donnerstein and Penrod in the 1980s suggests that men who view violent adult pornography are more likely to believe that women who are raped deserve the attack, place less responsibility on the attacker and demonstrate greater acceptance of "rape myths" than men who do not view this material. Prolonged exposure to nonviolent pornography that depicts women in sexually submissive roles may cause both men and women to become more tolerant of extreme forms of pornography, less supportive of sexual equality, and less likely to assign blame to a rapist (Zillman & Bryant, 1982); however, these effects have not always been replicated (Linz, Donnerstein & Penrod, 1988).

Child pornography may elicit responses similar to the secondary effects produced by violent adult pornography. Collecting experimental data on the effects of child pornography is impossible because possession of child pornography violates the CPPA. As such, psychologists are unable to prove that there is or is not a causal relationship between consuming child pornography and other illegal activity such as pedophilia. Similarly, there is no way to show causation between the way child pornography is marketed and the impact on the viewer. A limited number of self-report studies have been conducted to examine the relationship between exposure to child pornography and pedophilia, but sample sizes were small and biased (e.g., a sample of pedophiles who had all been sexually abused as children).

Larger scale, longitudinal studies are needed to provide the courts with answers to a number of questions. Does viewing child pornography in the past predict child molestation in the future? Do pedophiles use child pornography as a method of enticing unwilling victims into sexual activity? Do computer-generated images of child pornography produce the same secondary harm as child pornography produces with actual children? Psychologists are uniquely qualified to conduct this research.

Further Reading

"Judicial notebook" is written by the Courtwatch Committee of APA's Div. 9 (Society for the Psychological Study of Social Issues). This column seeks to encourage involvement by psychologists in judicial decision-making.