The 'Dost Test' in Child Pornography Law: 'Trial by Rorschach Test'

Refining Child Pornography Law: Crime, Language, and Social Consequences 81 (2016)

NYU School of Law, Public Law Research Paper No. 16-30

50 Pages Posted: 18 Aug 2016 Last revised: 25 Aug 2016

See all articles by Amy Adler

Amy Adler

New York University School of Law

Date Written: August 17, 2016

Abstract

This Chapter considers a pivotal but deeply problematic aspect of the definition of “child pornography”: the six factor “Dost test.” Although never considered by the Supreme Court, the Dost test, developed by a California district court, has become a key feature of child pornography law, adopted by virtually all state and lower federal courts as part of the definition of child pornography. Despite the near universal adherence to Dost, however, I argue that deep and unrecognized problems plague the test. Through a close reading of decisions applying the Dost factors, I show that these cases reveal startling uncertainties at the core of the test. Ultimately, I show that these uncertainties pose severe and unrecognized free speech problems. In my view, many cases decided under Dost may be unconstitutional in light of Supreme Court precedent; the definition of child pornography has become divorced from the Court’s foundational rationale for why we may ban this material consistent with the First Amendment.

Suggested Citation

Adler, Amy M., The 'Dost Test' in Child Pornography Law: 'Trial by Rorschach Test' (August 17, 2016). Refining Child Pornography Law: Crime, Language, and Social Consequences 81 (2016); NYU School of Law, Public Law Research Paper No. 16-30. Available at SSRN: https://ssrn.com/abstract=2825078

Amy M. Adler (Contact Author)

New York University School of Law ( email )

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