The social, political, and legal construction of the concept of child pornography

Most of the actual acts depicted by the young models in child pornography are legal. Although some of the older pictures have sullen, battered looking children who look like they have been drugged or coerced, that is rarely true of more current photos. Impressionistically, the largest number of pictures on pornographic sites involves clothed photographs of pretty or good-looking children. Often they are in bathing suits. These are tainted simply because of their presence on pornographic sites, but, although they often have an erotic tinge, the pictures would not be considered pornographic in other settings. The next largest number consists of nudes of diverse quality and degrees of eroticism. Some pictures of boys show erections. Videos are a media that demand movement and they often show sex play and horseplay among the youths (especially boys), but no real sex (except masturbation or attempted masturbation). Masturbation, usually alone but sometimes in groups, and oral sex are also occasionally shown in still images. Generally both boys and girls look cheerful and healthy, although obviously this could be an act. Still the smiles and playfulness are often in hundreds of photographs of the same models, and giggles are ubiquitous in the films. The attempt is to portray an innocent and joyful sexuality, whether or not that is what is experienced by the models and actors. The pictures are far less tawdry and hard core than adult porn and are more playful. Domination is not an important theme and very few images (probably less than 1%) involve adults. Except for the rare adult involvement, none of these acts are illegal or clearly harmful in themselves, although the photographing of them is illegal. [...]

The ostensible reason for denying even the minimum right to possess non-commercially distributed child pornography is that the production of the pornography harms the children portrayed, but this article has attempted to demonstrate that the argument does not hold up to analysis. In addition to the lack of evidence that the models are hurt, there is not a proximate connection between the production of images and anonymous possession of pictures downloaded for free from the Internet. [...]

Speech and images may be related to behavior, but a basic principle of our law is that speech and behavior are not the same. Sexual pariahs are especially enticing, and deviant groups like them serve an important function. They leave non-deviants with a feeling of moral rectitude and help to unite them by reinforcing their feelings of superiority and virtue. Additionally, when minority groups identify themselves with the moral stance of the majority, it helps make them legitimate. Thus, feminists, gays, lesbians, religious conservatives, politicians, and others can all prove their moral worth by attacking child pornography. The fear of child pornography is also used to justify attempts to bring the new information technologies under the control of regulators. Just as being against a lynchee unites the lynchers, allowing them to feel they are protectors of the moral order, so this issue unites a fragmented American community. As Sartre noted in his discussion of the anti-Semite, "by valiantly struggling against the Other as Symbolic Offender, the Just Man validates himself as good."

source: Article 'The Social, Political, and Legal Construction of the Concept of Child Pornography' by Harris Mirkin; pastebin.com/f7174d41a; Journal of Homosexuality, Volume 56, Issue 2; February 2009