Hastings Constitutional Law Quarterly


Onki Kwan


Congress first outlawed child pornography in the Protection of Children Against Sexual Exploitation Act of 1977. The statute was amended in 1984 because Congress found that the 1977 Act did not adequately protect children from sexual exploitation and abuse. In 1988, Congress introduced record-keeping requirements as codified in 18 U.S.C. § 2257 to supplement existing the 1984 statute. Since 1988, § 2257 has been amended several times, broadening in scope each time. Today, the statute is so broad that it infringes on constitutionally protected speech. As such, in Keisler v. Connection Distribution Company the Sixth Circuit held that § 2257 must be entirely struck down.

This Note argues that the current form of § 2257 infringes upon protected First Amendment rights. First, this Note proceeds with an overview of the First Amendment, including what constitutes protected and unprotected speech, and the role the Constitution plays in protecting sexually explicit expression. The Note then provides a timeline of anti-child pornography statutes and the cases challenging such statutes that eventually led to the Adam Walsh Child Protection and Safety Act of 2006, which the Sixth Circuit deemed unconstitutional. Next, the Note asserts that the Sixth Circuit's holding is important because 18 U.S.C. § 2257 puts law-abiding producers of sexually explicit material in danger of prosecution, while allowing producers of illegal child pornography to go undetected. In addition, it argues that legal forms of pornography deserve protection because they constitute a substantial part of our economy and provide health benefits to consumers. Finally, the Note suggests solutions to amend § 2257's recordkeeping requirements to ensure that they fall within the boundaries of the Constitution.