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

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.