Textual Child Pornography?

11-3-2008 Global:

About a month ago, I did a post on textual obscenity, which is at least a conceptual possibility under U.S. law. This post is about something different: textual child pornography . . . which I suspect is not a crime under U.S. law.

The question came up in the course of a conversation I had a couple of days ago with a reporter from Detroit. He said a prosecutor there – state or federal, I’m not sure which – is prosecuting pimps who apparently used Craiglist and other websites to prostitute children. I don’t know anything about the case, if such a case is in progress, but the reporter said something I found interesting.

He mentioned that a possible charge might be the distribution of child pornography. When I asked what such a charge would be based on, he said he thought it would be based on the pimps’ posting nude and/or sexually suggestive photos of children online along with text describing the sexual services they could, and would, provide.

I found that interesting, because it raised the issue (in my mind, anyway) as to whether text can constitute child pornography.I want to analyze that possibility, but I don’t want to use the possible-Detoit prosecution as the factual basis for our analysis. Instead, I want to focus on the ultimate issue: whether pure text could constitute child pornography.

If it can, then someone who writes stories about children engaged in sexual activity (presumably with adults) could perhaps (we’ll come back to that later) be creating child pornography (a crime under state and federal law); if they posted it online or shared with others, they could be charged with disseminating child pornography.


For the remainder of this interesting post see Here: by Susan Brenner, Law Professor