Legal Primer – What is (and is NOT) Child Pornography?

Let me apologize in advance — this might seem like an unsavory topic for discussion. But that’s the internet for you – not everything is sunshine and rainbows. Still, there are times when even an ugly subject warrants discussion so we can all have a more educated conversation. Please keep that in mind as you consider these comments.

Every once in a while I notice a pattern in removal requests coming across my desk. At some point the pattern grows into a trend, and eventually it reaches the point where I need to say something about it. Today, the issue is child porn. Or more specifically, it’s people who want content removed from TheDirty because they claim it constitutes child porn.

Back in ancient times (circa 2007), most people who wanted stuff removed from a website like TheDirty.com based their request on classic tort theories like defamation. By the time Nik and I appeared on the Dr. Phil show in late 2010, the new trend was “cyber bullying”. Now in 2014, the phrase I’m hearing more and more often is “child pornography”. Yuck.

Let’s make one thing perfectly clear — child pornography is bad. It’s completely unacceptable, and people who create/distribute/consume child porn deserve to be punished.

One more thing — child pornography is NOT ALLOWED on TheDirty.com. So this means that any removal request that mentions child porn will be instantly granted, right? Well, not so fast…

The problem is that like cyber bullying, the epithet of child porn is overused. Not every harsh word is bullying, and not every risque photo of a minor is child porn. The line between what’s unlawful and what’s not is actually very, very complicated even for lawyers and yes, even for cops. Based on the number of removal requests we’ve received referencing child porn, it’s clear this issue is either seriously misunderstood or is being abused in a way that dilutes the extremely serious nature of the subject matter.

So, as ugly as the topic is, knowledge is power. With that in mind, let’s talk about it.

The common perception seems to go something like this — if a photo shows a nude minor, that’s automatically child porn, right?

No. This is where the analysis begins, not where it ends.

The mere fact that a photo shows a nude minor is not automatically synonymous with child pornography; “The Supreme Court has clearly established that not all images of nude children amount to child pornography because ‘nudity, without more[,] is protected expression.’” Shoemaker v. Taylor, 730 F.3d 778, 785 (9th Cir. 2013) (quoting New York v. Ferber, 458 U.S. 747, 765 n. 18, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)); United States v. Hill, 459 F.3d 966, 970 (9th Cir. 2006) (noting, “For example, a family snapshot of a nude child bathing presumably would not be criminal.”)

Strange as it might sound at first, this rule is not crazy. Rather, it actually makes good sense. Imagine your sister has kids, and she sends you playful photos of them splashing around naked in the bath tub. Child porn? Clearly not.

The reason is simple — a photo can’t be considered child pornography unless it contains both a child and pornography. But like so many things in law, it’s more subtle and more complicated than that.

We all know what counts as a child (a minor under the age of 18). That’s the easy part.

But what about “pornography”? What does that cover?

On literally the first day of law school, my professor explained that when confronting any legal problem, you should always ask yourself: “Is there a statute on point?” If the answer is yes, then you start by looking at the language of the statute.

There are lots of different state and federal laws which address child porn and related crimes, so let’s just begin with the most common one — 18 U.S.C. § 2256. This section contains definitions for the various other federal child porn-related laws. The definition of “child pornography” is set forth in 18 U.S.C. § 2256(8) as follows –

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

See all those references to “sexually explicit conduct”?   That’s the key — an image can’t qualify as child porn unless it contains both a minor AND the minor is shown engaging in “sexually explicit conduct”.  This is what separates lawful photos of kids playing in a bath tub from illegal kiddie porn — one shows sexually explicit conduct and the other doesn’t.

This line is critically important from a First Amendment perspective because not all nude photos of minors are criminal, nor should they be.   In addition to harmless family photos of kids in the bath, there are many other instances of nude photos of minors which are protected under the First Amendment. One classic example is “napalm girl” from the Vietnam War.  This image shows a completely nude 9-year old girl, but is it child porn?  Absolutely not, because although it contains a minor and nudity, it lacks any “sexually explicit conduct”. Thus even though the image is disturbing, it’s protected speech not child porn.

OK, so what qualifies as “sexually explicit conduct”?  Let’s go back to the statute which has a separate definition of that term in 18 U.S.C. § 2256(2)(A) (sorry if this is slightly graphic) —

(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

There is also a slightly different definition of the term in 18 U.S.C. § 2256(2)(B), but for purposes of this discussion just assume that § 2256(2)(A) covers everything you need to know.

Based on this definition it should be fairly clear what is, and what’s not, child porn. Obviously, there’s more to the analysis which is beyond the scope of today’s discussion, but hopefully you get the point. At the very least, a photo can’t be considered child porn unless it shows a minor AND that person is engaged in sex (obviously), masturbation, or “lascivious exhibition of the genitals”. That means a photo of a topless teen probably is not sufficient, and even full nudity isn’t sufficient unless the genitals or pubic region are exhibited in a “lascivious” manner.

In closing, I want to reiterate — in no way, shape or form am I defending child porn. If you see an image on TheDirty which looks like it might be child porn, please let me know immediately. If I agree it’s illegal (or if it’s even remotely close), it will be removed immediately.

On the other hand, please don’t cry wolf and please don’t over-use this term. Probably 95%+ of emails I get claiming that something is child porn end up containing no nudity at all, or at least the nudity has been completely censored/redacted. These false alarms are becoming an increasing distraction, and they make it harder for us to identify and deal with *real* claims of improper content.

**UPDATE – 9/24/2014**

Just FYI, I am not pointing fingers at anyone, but this recent “demand letter” (from a fake lawyer) is extremely typical of a request where people claim that a post contains child porn: https://twitter.com/DavidSGingras/status/514563537201815552

Here is the post this guy was complaining about: http://thedirty.com/2012/06/poor-lauren/

Do you see anything in the post that even comes close to meeting the definition of child porn? Yes, there’s a photo of a girl sitting or maybe peeing on the ground (it’s not clear). Do you see sex? NO. Do you see bestiality? NO. Do you see “lascivious exhibition of the genitals or pubic area”? NO.

When people contact me and complain that a post contains child porn, 95%+ of the time this is exactly what I find. I know the post itself may still be rude and maybe it’s inappropriate for other reasons, but it’s absolutely NOT child porn.

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