conduct by children below a specified age."392 It is clear from the Court's language, and in all statutory and scholarly definitions of the term, that "child pornography" is only appropriate as a description of material depicting real children.393 The basis for these limitations is evident from the very nature of the outrage child pornography engenders anger over the sexual abuse of children used in its production. While concern over "pornography" generally has centered on the impact of sexually explicit materials on the audience, "child pornography" has been defined, and attacked, in terms of its effects on the children who appear in it. Thus, as the Court found in Ferber, the category of "child pornography" is both broader and narrower than that of "obscenity." Broader in that it includes materials which are not "patently offensive," which do not appeal to the "prurient interest of the average individual, "and which show children in sexual conduct even as an 392 458 U.S. 474, 746 (1982). The Court also required that the "category of 'sexual conduct' proscribed must also be suitable limited and described," id., and must not include mere "nudity." Id. at 765 n. 18. The New York statutes in question, Penal Law 263.15, was found to fit these requirements even though it included "lewd exhibition of the genitals" in its definition of proscribed sexual conduct. Id. at 773. 393 The Ferber Court began its analysis of "child pornography" by noting the judgment of legislators and clinicians that "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child," a judgment the Court found "easily passes muster under the First Amendment." Id. at 758. Ferber thus rests squarely on the assumption that the materials in question are limited to those in the production of which actual children have been used. incidental part of the work (rather than "taken as a whole").394 Narrower, however, in that written materials are wholly excluded, as are visual materials which do not show actual children engaged in sexual conduct. Thus a rewrite of Lolita which included graphic descriptions of sexual activity with a young girl could never be "child pornography," nor could a fully explicit film of the novel which starred an adult actress playing the part of the young girl. Such a film which used a minor actress, however, could be "child pornography" even if not "patently offensive" by prevailing community standards, and (although this is less clear) even if it possessed serious artistic, literary, scientific or educational value.395 In the context of "child pornography," alone among all the issues considered by the Commission, the defninition of "obscenity" proclaimed in Miller v. California396 and its progeny is wholly irrelevant. "kiddie porn" in the years after Miller provides vivid illustration of the inadequacy of the concept of "obscenity" for protecting the interests of performers in sexually explicit Indeed, the advent of 394 Id. at 764. 395 or Thus the Court found that "a work which, taken as a whole, contains serious literary, artistic, political, scientific value may nevertheless embody the hardest core of child pornography." Compare, id at 774-775 (O'Connor, J., concurring) (no defense based on "serious value" should be allowed) with id., at 775-777 (Brennan, J., concurring in the judgement) such a defense required by First Amendment). 396 413 U.S. 15 (1973). material.397 The irrelevance of Miller to child pornography is loaded with some historic ironies, for it was later in the very year of that decision, 1973, that the first child pornography ring involving some fourteen adults using boys under age thirteen for and production of pornographic materials - was brought to public view.398 In the four years that followed police and reporters uncovered a wide range of activities involving the sexual exploitation of children, much of it involving child Early in 1976 two employees of a large Los pornography.399 Angeles corporation publishing sexually explicit magazines were convicted of pandering for hiring a fourteen-year-old girl to engage in numerous acts of photographed sexual intercourse for publication in the company's magazines.400 Later in that year the Los Angeles Police Department established a special Sexually Exploited Child Unit to combat child pornography and 397 For the full discussion of the problem of the use of adult performers in commercial pornography, See, Chapter 2 in Part Five. 398 S. O'Brien, Child pornography 60 (1983) (arrests by Los Angeles police). In August of 1973 the sexually sadistic murder of twenty-seven young boys by Dean Corll was uncovered, while several other call-boy rings were also exposed that year. 399 See R. Lloyd, For Money or Love: Boy Prostitution in America (1977); C. Linedecker, Children in Chains 212-242 (1981). 400 People v. Fixler, 128 Cal. Rptr. 363, 56 Cal. App. 3d 321 (2d Dist. 1976). prostitution, 401 and in the spring of 1977 a string of investigative articles in the Chicago Tribune, Time and other major publications helped prompt a full Congressional investigation of the problem.402 which involved What Congress discovered in its hearings one Senate and two House subcommittees over ten dates and four cities from May to September of 1977403 Senate Judiciary Committee in its report: was summarized by the [C]hild pornography and child prostitution have become According to evidence at the hearings, those industries were producing some 264 different commercial magazines each month 401 Sexual Exploitation of Children, Hrgs. Before the Subcomm. on the Judiciary, U.S. House, 95th Cong., 1st Sess. 63 (1977) (statement of Investigator Lloyd Martin, Los Angeles Police Dep't) (hearings hereinafter referred to as "Subcommittee on Crime Hearings"). 402 For a reprint of the most influential articles See, Subcommittee on Crime Hearings, supra note 401, at 422-443. 403 Subcommittee on Crime Hearings, supra note 401; Sexual Exploitation of Children, Hrgs. Before the Subcomm. on Select Education, Comm. on Education and Labor, U.S. House, 95th Cong., 1st Sess. (1977) (hereinafter "Select Education Subcommittee Hearings"); Protection of Children Against Sexual Exploitation, Hrgs. Before the Subcomm. to Investigate Juvenile Delinquency, Comm. on the Judiciary, U.S. Senate, 95th Cong., 1st Sess. (1977) (hereinafter "1977 Senate Hearings"). 404 S. Rep. No. 438, 95th Cong., 1st Sess. 5 (1977). showing children nude or engaged in sexual conduct,405 and the founder of the Los Angeles Sexually Exploited Child Unit reported that "We have 30,000 sexually exploited children in that city."406 One producer and distributor was reported to have made five to seven million dollars in his own child-pornography business,407 while other witnesses before Congress described the 408 kidnapping of small children by pornographers, and even their sale by parents.409 Child pornography had, in short, become a part of the commercial mainstream of pornography by 1977, sold "over the counter" and in considerable quantities. While a substantial amount of such material was of foreign origin, much of it was 410 405 Subcommittee on Crime Hearings, supra note 402, at 43 (testimony of Dr. Judianne Denses-Gerber, Presl, Odyssey Institute). 406 Id. at 59 (testimony of Lloyd Martin). 407 Id. at 117 (statement of Michael Sneed, reporter, Chicago Tribune). 408 Select Education Subcommittee Hearings, supra note 403, (statement of Robin Lloyd). at 116. 409 Id at 42-43 (testimony of Lloyd Martin). 410 For an excellent overview of the production of child pornography in the Netherlands, Denmark, and other northern European countries as well as the repackageing for shipment to the United States of material originally produced in Americasee, Child Pornography and Pedophilia, Hrgs. Before the Perm. Subcommittee on Investigations, Comm. on Governmental Affairs, U.S. Senate, 98th Cong., 2d Sess; Part 1 (1984) (especially testimony of Kenneth J. Herrmann, Jr., and Michael Jupp, and Toby Tyler, id. at 322-37); and Child Pornography and Pedophilia, Hrg. Before the Perm. Comm. on Investigations, Comm. on Governmental Affairs, U.S. Senate, 99th Cong., 1st Sess., Part 2 (1985) (especially testimony of Elliott Abrams, et al., members of federal interagency group which travelled to Denmark, The |