children, clearly under the age of 18, and accompanying text. Most of the photographs depict prepubescent girls positioned so as to expose their genitalia. In certain instances, children are shown masturbating or urinating. Some photographs depict children engaged in oral sex with adults. Most appear to have been published or printed in locations outside of the United States between 1970 and 1984.
Stanley testified that the items were acquired in connection with his research for "The Child Pornography Myth", an article published in the Cardozo Arts and Entertainment Law Journal. Most of the items were obtained by Stanley in the Netherlands, who transported them into the United States. With these materials, Stanley testified that he intended to conduct a content analysis of commercial child pornography, including photographs and other visual depictions. In this endeavor, Stanley intended to statistically index the visual depictions of child pornography. The items, however, were seized prior to the completion of the content analysis.
The parties agree the magazines, photographs and videotapes contain visual depictions of minors engaged in sexually explicit conduct in violation of Section 2252 of Title 18, United States Code. Section 2252 prohibits the transportation, receipt and sale of any visual depiction involving the use of a minor engaged in sexually explicit conduct that has been mailed, shipped or transported in interstate or foreign commerce. In addition, the statute prohibits possession of three or more books, magazines, periodicals, films, videotapes or other materials which contain any visual depiction of minors engaged in sexually explicit conduct. 18 U.S.C. § 2252(a)(4)(B) (1994). As used in this section, a minor is anyone under the age of eighteen years. 18 U.S.C. § 2256(1) (1994). "Sexually explicit conduct" refers to actual or simulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person. 18 U.S.C. § 2256(2).
The United States seeks an order of forfeiture for the specific items listed above. At trial, Stanley denied ownership in the color photographs or contact sheets. These items are therefore ORDERED forfeited to the United States. Stanley, however, asserted a claim for the return of the commercial magazines.
Stanley argues that as an academic researcher, he is entitled to possess the materials under the First Amendment. Relying on New York v. Ferber, 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982), Stanley urges the Court to find an exception to section 2254 for bona fide academic research.
In New York v. Ferber, the Supreme Court addressed a New York statute prohibiting persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depict such performances. Certiorari was granted on the question whether the New York Legislature, consistent with the First Amendment, could prohibit the dissemination of material which shows children engaged in sexual conduct regardless of whether such materials were obscene under Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). Ferber, 458 U.S. at 753.
The Supreme Court held that child pornography fell outside the protection of the First Amendment because of the States' compelling interest to safeguard the physical and psychological well-being of children. Id. at 763-64. The Court recognized that "the States were entitled to greater leeway in regulation of pornography depictions of children." Id. at 754. The New York statute was not unconstitutionally overbroad even though a "tiny fraction" of materials involving serious literary, scientific, or educational value were within its reach. Id. at 773. Interestingly, the Court found little value in permitting live performances or photographic reproductions of children engaged in lewd sexual conduct.
Id. at 762-63.
In 1984, Congress enacted the Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 206 (1984). Partially in response to Ferber, the Child Protective Act sought to increase the effectiveness of federal laws designed to combat the creation and proliferation of child pornography. Civil forfeiture was one of the provisions implemented under the Act. Section 2254 of Title 18, United States Code, reads, in pertinent part, as follows:
(a) Property subject to civil forfeiture.- The following property shall be subject to forfeiture by the United States: