William & Mary Bill of Rights Journal
Abstract
This Article surfaces emerging threats to artistic expression posed by the Dost test, which outlines six factors for interpreting a “lascivious exhibition of the genitals” under federal and many state child pornography laws. It argues that the present state of American politics has eroded normative inhibitions that previously prevented the ambiguities and vulnerabilities of child pornography prosecutions from being systematically exploited. By way of repair, the Article offers two jurisprudential reform proposals.
Synthesizing precedent, criticism, and theory, the Article demonstrates Dost invites selective enforcement against politically and religiously unpopular artwork by authorizing courts and prosecutors to assess polysemous visual works through the imagined perspective of a hypothetical pedophile. The Article posits that modern developments—including resurgent right-wing populism and Comstock revivalism, the asymmetry in constitutional law between obscenity and child pornography law, and recent federal regulatory shifts—have eroded the reliability of prosecutorial discretion as a safeguard against the test’s misuse in this fashion.
The Article’s primary aim and contribution lie in offering two reforms to address the growing risk of politicized censorship, punitive criminal liability, and broader colonization of Habermasian cultural spheres by legal-administrative systems. The Article proposes: (1) replacing the Dost test with a plain-language statutory definition of “lascivious exhibition,” and (2) incorporating a “serious artistic value” exception into child pornography law for museums and artists modeled on obscenity doctrine. The Article demonstrates these reforms have potential for crossideological support and would preserve robust child protection laws while defending artistic expression and core First Amendment values.