The United States Supreme Court substantially limits free expression rights when it comes to child pornography, out of consideration of the harm that child pornography can and does cause. Thankfully, the Supreme Court is cautious against creating new categories of expression that receive reduced First Amendment protection.

In 2002, the Supreme Court took an important step in applying First Amendment protection for child pornography defendants, by prohibiting child pornography convictions for images of people who look like minors but are actually adults. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

It is very troubling that this week the Virginia Court of Appeals affirmed a child pornography possession conviction where the judge at this bench trial never saw even one image of the alleged child pornography, where the defendant told police he had previously destroyed his computer hard drive. Terlecki v. Com, ___ Va. App. ___ (June 16, 2015). The prosecutor relied for a conviction upon the description of the images by the defendant (to the police) and his ex-girlfriend and the defendant’s admissions to the police and his ex-girlfriend.

Because Terlecki admitted that the images he watched included prepubescent girls, the Court of Appeals may have had little difficulty about the absence of images at trial. However, child pornography cases often involve a well-grounded dispute about whether the images depict actual minors, can contest whether the images even depict real people, and need the allegedly offending images to know whether they depict the sexual imagery and sexual activity that qualify as child pornography (for instance, toplessness by a minor, alone, is not enough to constitute child pornography). Left out of today’s blog entry are the additional defenses< against child pornography prosecutions, including the proof needed to even show that the defendant had the requisite knowledge, dominion and control over the images.

I continue to believe that the First Amendment is damaged by criminalizing mere possession of child pornography — as disgusting and damaging as child pornography is — versus criminalizing the production of child pornography. In that regard, the Supreme Court got it right in declining to criminalize mere possession of animal cruelty crush videos.