The First Amendment protects most speech and expression, and there is generally wide latitude and allowance for all forms of expression – even publications which publish photos of women in little to no clothing. It’s all in the name of art.
Nude adults are one thing. Nude or nearly-nude children are a whole other can of illegality that the First amendment has yet to protect.
Any sexually suggestive images or messages from, to, or about children cross over into an area where the First Amendment does not touch, and courts have so far upheld restrictions and laws forbidding the possession or distribution of child pornography.
But what is child pornography and how broadly is it defined?
The first trick is to determine what is pornographic? One judge famously said, “I can’t define pornography, but I know it when I see it.” There is some value to that statement, as what is deemed pornographic (at least with adults) seems to be based on an individual’s morality – so pornography that is restricted or not covered by Frist amendment protections are those which fall to the most baseline level.
But with children, who are supposed to be innocent and thought of in that way? Virtually anything considered evens lightly suggestive of sexuality – whether it be text messages, photos or videos – can be considered pornographic in nature, because they are supposed to be outside of most general morality. While most states have child pornography laws, they are not the same – so there are federal statutes that refer to child pornography as it pertains to images being sent across state lines or to and from the United States over international borders.
Federal law regarding child porn involves images such as photos, videos, and even computer-generated images that seem to show an actual child (not some representation), which is defined as any minor under the age of 18, in a sexually suggestive activity or pose. This law also applies to any storage of these visual images, distribution – and even applies to all undeveloped film or video that may be converted into such an image.
The fine print is the word “suggestive.” It can still be child porn if it’s just an image of a child in a provocative or sexually suggestive pose – there does not have to be an image of actual sexual activity and the minor does not even have to be naked either or undergoing child molestation.
And what if you are not someone involved in the production of the child porn, but you enticed or encouraged the minor? Even you are susceptible to prosecution for conspiracy to commit an act of child pornography, which has its own sentencing guidelines. There is not an enticement, motivation, coercion, or any other appeal to a minor to participate – the minor would have to participate completely voluntarily (and that consent would only apply in states where the minor is at or above the state’s legal age for consent, usually between 16 and 18).
When it comes to children, they are not to be pawns for First Amendment expression.