Every time child pornography is viewed, it victimizes those depicted.
That basic insight is deeply embedded in modern American law. In 1982, in New York v. Ferber, the Supreme Court held that child pornography was not protected under the First Amendment. The majority opinion recognized the unique harms associated with continuous distribution of child pornography. The court quoted academic research, which concluded that “Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place.” And that was before child pornography went digital.
Child pornography is not like guns or drugs. It can be infinitely copied and distributed. Every time it is viewed, it victimizes those depicted.
More recently, Congress and the court have taken even greater steps to prevent and discourage unnecessary reviewing of child pornography in the Internet era. In 2006, as part of the Adam Walsh Child Protection and Safety Act, Congress enacted restrictions on a defendant’s access to child pornography evidence stopping the practice of defendants automatically receiving digital mirror copies of the evidence. In 2014, the court held, inParoline v. United States, that victims could receive restitution from those who possessed, but did not distribute or create, child pornography portraying them.
Justice Anthony Kennedy’s majority opinion clearly stated that “the harms caused by child pornography … are still more extensive because child pornography is a permanent record of the depicted child’s abuse, and the harm to the child is exacerbated by its circulation.”
One need not agree with the court’s decisions or the Adam Walsh Act to recognize the underlying idea that every distribution and possession of child pornography carries a new victimization with it.
If you put yourself in the shoes of a child pornography victim, you should recognize the incredible helplessness they experience as a record of their victimization is continually circulated among criminals who derive sexual pleasure from viewing their past exploitation.
Child pornography is not like guns or drugs. It can be infinitely copied and distributed. When the government distributes tangible contraband as part of a sting operation, it cannot hope to contain or limit the dissemination of the illegal goods.
If the allegations against the FBI are true regarding its control of the network for approximately two weeks, it actively participated in the revictimization of those depicted in child pornography with no possibility of controlling distribution. Such conduct is immoral and inexcusable. The FBI should have pursued its sting operations without child pornography distribution by utilizing alternatives such as virtual child pornography or by getting warrants based upon the identifying Internet information they could otherwise gather.