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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'
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