Having formalized a particular construction of sexual activity as de facto harmful as far as children are concerned, New York v. Ferber became the foundation for subsequent legal decisions regarding minors and pornography. While court decisions and congressional acts in the past two decades on the subject of child pornography have been grounded in a similar ideological stance that constructs sexuality as dangerous and as a taboo realm from which children should be excluded, the focus of subsequent legislation has shifted from the site of production to that of distribution and consumption. Along with raising the federal age requirement for pornography subjects from sixteen to eighteen, child pornography laws in the wake of New York v. Ferber have mostly been concerned with the legal status of material labeled “virtual child porn.”[16] [open endnotes in new window]

Virtual child pornography refers to sexually explicit material that features performers who appear to be under eighteen, either because of their youthful appearance or because their images have been digitally manipulated. In New York v. Ferber this material was designated as legal, and in fact the use of young-looking adults was proposed as a viable alternative for child porn producers.[17] Given that the original justification for censorship in New York v. Ferber was the protection of children who were the (ostensibly exploited) participants in pornography featuring minors, a distinction between pornography featuring actual and virtual children is in keeping with the way in which the Ferber decision constructed child pornography as a threat.

However, beginning with the Child Pornography Prevention Act of 1996, the emphasis on child pornography as a social danger was shifted from the experience of the subjects to the construction of a market. Material featuring performers who only appear to be under eighteen has become a source of contention. That federal statute designated virtual child pornography as illegal, employing a form of reasoning that focused on the market, rather than the experience of the performers during the production. The statute justified designating another area of speech as outside the protection of the First Amendment by arguing for the effects of virtual child pornography on the market place. In effect, virtual child pornography was considered to be an encouragement to child pornography consumers. By providing this audience with material, virtual child porn enables the market to exist and, as an indirect consequence, increases the likelihood that actual children would be harmed by being enlisted to furnish other material for this entrenched audience. Because it shifted the threat from the site of production to the existence of a pedophiliac audience, the CPPA did not recognize any real distinction between pornography featuring actual or virtual minors. Both forms of pornography catered to the demands of a consumer that the act was geared towards eliminating.

The emphasis on distribution and consumption, rather than production, in evaluating the social threat posed by child pornography was briefly reversed in 2002 with the Supreme Court decision in Ashcroft v. Free Speech Coalition. The Court determined that the CPPA was unconstitutional, due to its vague and overly broad language. As a consequence of that case, virtual child pornography was again determined to be a form of speech protected by the First Amendment.

Following this decision, Congress passed the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (generally referred to as the “PROTECT Act”) in 2003. This act also centers on a distinction between the production of pornography and its distribution and consumption. While the PROTECT Act, in line with the Ashcroft v. Free Speech Coalition decision, recognizes the production of virtual child pornography as legal, the act designates the promotion and consumption of it as illegal, if the work is represented in the transaction as featuring actual minors. In other words, to knowingly solicit, promote or consume a work that has been labeled “child pornography” is illegal, even if the work that is being circulated does not feature actual minors. The PROTECT Act effectively renders the content of the film as beside the point – what matters is that a producer, distributor or consumer represented themselves as intending to engage in the promotion or consumption of material featuring the exploitation of actual minors. After being declared unconstitutional by a federal appellate court in Atlanta in 2006, the PROTECT Act was upheld as constitutional by the Supreme Court in May 2008, in United States v. Williams. As a consequence of this statute, and the Court’s decision, the prosecution of child pornography has again been shifted from the question of conditions for production to the terms under which a work is promoted and consumed.

As scholars such as Laura Kipnis have noted, laws such as the PROTECT Act are geared towards policing fantasies rather than acts. People who seek out sexual images of children are identified as criminals by our legal system, even if the material that they solicit and/or consume did not necessitate the actual enlistment of a child in a sexual performance. Just by asking for this material, and thereby indicating a desire to sexualize children, they are committing a criminal act. The attention paid to consumption in child pornography cases and legislation over the past two decades to some degree helps make comprehensible the more recent prosecution of minors who produce pornography. These cases can be referred to as “sexual self-exploitation” not because of any debate regarding the harm experienced by the subjects at the hands of the producers during the making of the material, but instead because of the possible threat the circulation or even existence of the material is perceived to pose to the subjects. As with the discussion of virtual child pornography, self-produced child pornography is constructed as dangerous because of the audience that it might find.

For example, in the 2007 Florida case, A.H. v. State, A.H. and her boyfriend were perceived as endangering themselves not only because they photographed themselves in sexually explicit poses, but also, and perhaps more crucially, because they emailed attachments of the photos to each other. The sharing of this material via email was what led to their drawing the attention of law enforcement, and the transmission was also the crux of the case that the government made for why their activities should be determined as illegal. By uploading and then sending the images via email, they were perceived to be putting themselves at risk, because child pornography consumers might be able to then access the images and potentially even pursue the two subjects. A.H. and her boyfriend were therefore guilty of contributing to and enabling the child pornography market and allowing themselves to be sexualized and perhaps even opening the door to a future molestation by one of their admirers.[18]

The argument for criminalizing self-produced child pornography depends upon a particular construction of an ever present and quasi-voracious pedophiliac audience. This predatory, if hypothetical, consumer is constructed as an adult and is pivotal in arguments against self-produced child pornography in that it allows those who advocate shielding minors from sexually explicit material to designate a figure of danger who is not the ostensibly innocent child. By displacing the threat of danger away from the producer onto an unspecified and unintended consumer, legal arguments buttressing the ban on self-produced child pornography avoid the contradictory position of explicitly vilifying those who they seek to protect.

With the shadowy figure of this malevolent, voyeuristic adult in place, the innocence of these sexually active teens can again be reaffirmed. Rather than self-possessed subjects of sexual desire, they become unthinking and naïve souls who have inadvertently exposed themselves to the dangerous and unpredictable desires of adults. They become, in other words, objects of a threat they lack the foresight to perceive, and this inability to protect themselves in turn serves as further evidence for the need for regulation and adult monitoring of their actions. Ultimately, legal arguments against self-produced child pornography participate in an effort to undue the agency minors demonstrate in their creation of the sexually explicit material in the first place.[19]

Media representations of
self-produced child pornography

In court decisions and law review articles devoted to child pornography, television news exposés and major newspapers are often cited as evidence for claims made regarding the victimized position of minors and the predatory nature of adults. I would therefore like to address the manner in which self-produced child pornography is constructed in contemporary media discourse. Through making explicit the ideological agenda of certain journalistic pieces, I hope to further demonstrate how this concept threatens minors’ rights to sexual expression.

In my discussion of media constructions of child pornography, I will focus in particular on a series of articles that appeared in the New York Times concerning Justin Berry, as well as more recent press coverage documenting the proliferation of self-produced child pornography via cell phone use. My interest in Berry stems from the fact that the New York Times articles written about him have been repeatedly cited in legal scholarship concerning child pornography and the articles led to Berry’s testimony before a Congressional subcommittee regarding child pornography in 2006.[20] However, since these articles appeared in 2005, and much journalistic attention has since been devoted to self-produced child pornography, and for the most part been more concerned with the role of cell phones in this practice, I will also engage with more recent articles on the subject.

On December 19, 2005, the New York Times published an investigative article on child pornography written by Kurt Eichenwald, a business reporter who had received acclaim for his coverage of the Enron scandal. Eichenwald organized his article as a life story narrative about Justin Berry, a nineteen year-old boy who had been producing and sharing pornographic images of himself since he was thirteen. The story traces Berry’s life from the point at which he first receives a webcam, through his entrance into online chatrooms and the request and solicitations from adult men that followed. Eventually Berry came to create a series of websites which featured photos and videos of himself in sexual acts, often involving poses or performances that were specifically requested by his adult customers, as well as images of other young performers. The culmination of the article begins with Eichenwald’s intervention into Berry’s life and Berry’s decision to turn away from his child porn projects and partners. In what was apparently intended to be a companion essay devoted to explaining the possible threat that Eichenwald’s unorthodox approach in reporting might pose to journalistic ethics, a sidebar to the Berry portrait appeared in the newspaper’s online edition, explaining the personal actions that Eichenwald had taken to extricate Berry from the child pornography lifestyle, including his efforts to help Berry fight a drug addiction and find legal representation.[21]

The 6,000-word portrait of Berry received much praise in the months after it was first published, with the Times then-public editor Byron Calame calling it in a follow-up article one of the “most important” articles that the paper had published in the recent past and, in a separate follow-up article, noting that had Eichenwald had received a 2006 Payne Award for Ethics in Journalism from the University of Oregon’s School of Journalism and Communications for “preserving the editorial integrity of an important story while reaching out to assist his source.”[22]

However, even in these initial months of positive reception and celebration of Eichenwald’s piece, some journalists questioned the ethics of Eichenwald’s personal involvement with the central source in the story he was reporting.[23] In later months, these questions of method and ethics became more insistent when it was revealed that Eichenwald had given Berry a check for $2000 while in the process of investigating the story, a fact that was made public in 2007 during a trial for one of the men that Berry had identified as his adult business partner.[24] In the prosecution of one of Berry’s other website partners it became clear, still later on, that Eichenwald had paid Berry an additional $1,184 through PayPal for pornographic pictures that were posted on one of Berry’s sites.[25] Some commentators raised questions on what Eichenwald’s motives were in purchasing these images, and whether any might have been of a fourteen-year-old boy who had posed for pictures posted on Berry’s site.[26]

Since writing the Berry article, Eichenwald left the New York Times. For a while he held a position at Condé Nast’s business magazine, Portofolio, but then he left that publication in August 2007 after his additional payment of approximately $1000 to Berry was made public. Eichenwald’s saga has already received much attention from other journalists, most especially Debbie Nathan, who has written critiques of Eichenwald’s work for New York magazine’s website and Counterpunch. Nathan has in fact become a character in the larger story herself, with Eichenwald or stories sympathetic towards him presenting her as a child pornography crusader intent on derailing his career. Given the ample media coverage of this story, I’m less interested in weighing in on the respective truths or biases of the principals and more concerned with how the original narrative of Berry is salvaged by Eichenwald’s sympathizers.

Even in admitting Eichenwald’s ethical lapses in paying Berry a substantial amount of money and then neglecting to tell his editors about those payments,[27] journalists and editors who argue Eichenwald’s cause attempt to disentangle the quality of the article that the methods produced from the methods themselves. For example, in an October 2007 story for the National Public Radio program All Things Considered, the following quote from Eichenwald’s editor at the Times, Larry Ingrassia, is foregrounded:

“To date, while Kurt’s behavior has been challenged, his account of how minors can be exploited by customers and operators of pornographic websites has stood up.”[28]

A more blatant construction of Eichenwald as savior is evident in a lengthy New York magazine piece published in the same month. Beneath the headline “Saving Justin Berry,” a subhead summarizes the story as

Times business reporter Kurt Eichenwald thought he was doing a noble thing by rescuing a teen from the Internet sex trade. He didn’t know how much it would cost him.”[29]

In both these pieces, Eichenwald’s basic project of intervening in a teenager’s life is essentially presented as a selfless act that had tragic consequences for his own career. Perhaps more relevantly, these articles reaffirm Eichenwald’s initial construction of Berry as a troubled child who had never recovered from his initial victimization by adult men. In both his entrance and his exit from child pornography production, the actions of an adult are presented as the necessary catalyst.

While Eichenwald and his proponents (meaning the journalists and scholars who have subsequently cited the story), construct Berry as the victim, responding to the manipulations and instructions of adult puppeteers, the terms “sexual self-exploitation” or “self-produced child pornography” are interestingly absent from his story or the subsequent coverage of it. Instead the term “webcam pornography” is used. This choice in terminology perhaps reflects a desire to distance Berry from any position of agency in the production of pornography. The emphasis on the webcam in the label works to elide Berry’s role in the making of any pornographic material. Instead, the Internet and its attendant devices become the primary culprit, along with, of course, the adult men that have access to Berry through this technology.

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