III. CHILD PORNOGRAPHY
A. Definition
N.J.S.A. 2C:24-4b imposes criminal penalties upon
any person who permits or causes a child to engage in a
prohibited sexual act that he knows will be photographed
or reproduced in any manner. A child is defined as
anyone under 16 years of age. N.J.S.A. 2C:24-4b(1).
Prohibited sexual acts are defined in N.J.S.A. 2C:24-
4b(2)(a) to (i). N.J.S.A. 2C:24-4b(3) and (4)(a)
proscribe, as a second degree offense, any form of
manufacturing or trafficking in child pornographic
materials. N.J.S.A. 2C:24-4b(4)(b) also prohibits, as a
fourth degree crime, knowing possession or viewing of
child pornography. Violations of the child pornography
laws under N.J.S.A. 2C:24-4b are strict liability crimes
with respect to the age of the child. N.J.S.A. 2C:24-
4b(5).
B. Legislative History
N.J.S.A. 2C:24-4b has been amended several times
since 1984 to reflect technological advances. In 1984,
the Legislature amended the subsection to include
videotape and other forms of pictorial representation and
to include any form of manufacturing or trafficking. In
1992, in response to the United States Supreme Court
ruling in Osborne v. Ohio, 495 U.S. 103 (1990), which
permitted states to criminalize the possession of
pornographic photographs of children, the Legislature
amended N.J.S.A. 2C:24-4b to make it a fourth degree
crime to knowingly possess or view such material. In
1995, the Legislature again amended the statute to
clarify that computer programs and video games
containing child pornography are also prohibited by
N.J.S.A. 2C:24-4b. In 1999, the statute was amended
once again to include the Internet as a prohibited means
of trafficking in child pornographic materials. See State v.
Brady, 332 N.J. Super. 445 (App. Div. 2000), certif.
denied, 165 N.J. 606 (2000).
C. Constitutionality
According to New York v. Ferber, 458 U.S. 747
(1982), child pornography is not entitled to First
Amendment protection provided the conduct to be
prohibited is adequately defined by applicable state law,
as written or authoritatively construed.
United States v. X-Citement Video, Inc., et al., 513 U.S.
64 (1994), construed the scienter element in federal
pornography statute (“knowingly”) to extend both to the
sexually explicit nature of the material and to the age of
the performers.In Reno v. American Civil Liberties Union, et al., 521
U.S. 844 (1997), the constitutionality of provision in
Communications Decency Act, 47 U.S.C. 223,
prohibiting transmission of obscene or indecent
communications by means of a telecommunications
device to persons under age 18 would survive facial
overbreath challenge by severing term “or indecent” from
statute pursuant to its severability clause.