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21 Widener L. Rev. 51 (2015)
The Categorical Failure of Child Pornography Law

handle is hein.journals/wlsj21 and id is 59 raw text is: THE CATEGORICAL FAILURE OF CHILD PORNOGRAPHY LAW LAURA E. AVERY* I. INTRODUCTION In 1942, the Supreme Court laid the foundation for the excision of entire categories of speech from the protection of the First Amendment.! It did so on the basis that such categories are comprised of expression evincing societal harms that clearly outweigh any benefit arising from the speech.2 Recognizing that this approach carries with it a high risk of censoring protected expression, the Court charged itself with ensuring that unprotected categories would both specifically define the speech to be excluded and include firm limits on what expression falls within the allowable scope of regulation. Generally, the Court has taken its responsibility very seriously, scrupulously narrowing the speech categories cast outside the First Amendment. The Court has virtually ignored its charge in the context of child pornography. Unlike incitement and obscenity, which were both subjected to years of judicial scrutiny, refinement, and narrowing, the capacity of child pornography law has consistently expanded since its genesis. Although many have argued that this expansion is the result of a panic-discourse concerning children and sex, the essence of child pornography law's unprecedented growth lies in the continuing abnegation of the Court to devise a suitable definition of child pornography and place meaningful restrictions on the reach of regulation. Bloated from its inception, child pornography law has become more and more attenuated from the grave harms that justify prohibitions on speech. The result is a failure of meaning-in other words-a categorical failure. II. CATEGORIZING SPEECH At the crux of the debate concerning freedom of speech is the question of whether, and under what circumstances, the government may restrict speech because its content threatens harm to society. The command that Congress shall make no law... abridging the freedom of speech'3 can certainly be read literally, and it has by some,4 but the Court has never considered the freedom *J.D. 2014, Tulane University School of Law. Laura would like to thank Professor Keith Werhan for his support and mentorship. 1 See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (holding that certain well- defined and narrowly limited categories of speech, such as the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words, fall outside the bounds of constitutional protection). 2Id. 3 U.S. CONST. amend. I. 4 See, e.g., Beauharnais v. Illinois, 343 U.S. 250, 274-75 (1952) (Black, J., dissenting) ([The First Amendment, with the Fourteenth, 'absolutely' forbids such laws without any 'ifs' or 'buts' 51

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