Hastings Constitutional Law Quarterly


Though the depiction of minors engaged in obscene or sexual acts has been heavily criminalized, modern technology and the Internet have allowed for the creation of virtual child pornography-sexually explicit images that appear to depict minors but are produced without the involvement of any real children. Though children are not directly harmed by the production of this type of material, Congress has found that virtual child pornography perpetuates a market for pornography involving actual children and thereby causes what I refer to as a substantial indirect harm to society. Prosecution for possession and distribution of actual child pornographic material has also proven exceedingly difficult due to virtual child pornography, and the Court has struggled to devise a consistent scheme that can effectively stop the dissemination of this disturbing virtual material without overly infringing upon protected speech.

In 2008, the United States Supreme Court decided United States v. Williams, a landmark child pornography case, in which the Court held that offers to provide or requests to obtain child pornography were categorically excluded from First Amendment protection. The Court strove to thwart challenges to current anti-child pornography statutes-as these statutes were considered overbroad and therefore vulnerable-by making more expansive definitions of child pornography. The Court accomplished this by shifting the focus away from proscribing the illicit material itself and instead criminalizing the expressed intention or belief of the individual distributing those materials. This Note will explore this area of First Amendment jurisprudence and argue that the confusion over the constitutionality of virtual child pornography persists. Williams did not resolve the tension between First Amendment protection and the need to criminalize virtual child pornography.