Because virtual child pornography does not involve the actual physical abuse of children. In its 1982 decision New York v. Ferber, the U.S. Supreme Court first ruled that child pornography was a category of expression that did not receive First Amendment protection. Previously, child pornography would have to be classified as obscenity in order to lose First Amendment protection. The Court in Ferber based its decision in large part on the actual abuse suffered by children in the making of the materials.

The issue is that with virtual child pornography, no actual child is physically abused. In Ashcroft v. Free Speech Coalition, the U.S. Supreme Court struck down two parts of a federal law, the Child Pornography Prevention Act of 1996, that targeted virtual child pornography. The Court wrote: "In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production."