There is a disturbing child pornography case out of Nebraska that also raises some challenging legal questions. Jeffrey Anderson, who entered a conditional guilty plea for one count of distributing child pornography, after digitally editing a photo of a naked adult woman having sex and replaced the face with that of an 11-year-old girl. He then sent the girl the photo with the caption “This is what we will do.” The Eighth Circuit upheld his 10-year sentence in rejected the conditional challenge to the charge.
The legal issue is whether child pornography applies (as opposed to other obvious charges) when there is no actual photography of a child engaged in sexual activities. The federal law defines child pornography to include any “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(C) (emphasis added). In addition, 18 U.S.C. § 2252A(a)(2)(A) makes it a crime knowingly to distribute child pornography as defined in § 2256(8)(C). Notably, this is not the same controversy that we discussed earlier about purely computer generated images being prosecuted as child pornography. Anderson did not dispute that the definition of child pornography in § 2256(8)(C) encompassed his morphed image but sought dismissal on the ground that §§ 2252A(a)(2)(A) and 2256(8)(C) are unconstitutionally overbroad under the First Amendment as applied to the morphed images.
In 2010, United States v. Stevens, 559 U.S. 460, 471 (2010), the Supreme Court held that child pornography must involve visual depictions that were produced through sexual abuse of one or more children. In that case, the crime was animal cruelty, but the Court’s decision swept more broadly in rejecting some “simple cost-benefit analysis” when free speech is involved.
The Eighth Circuit relied on such past cases to reject the government’s categorical defense of the charge. But the Court then ruled for the government that the prosecution did satisfy the high standard of strict scrutiny:
Next, to satisfy strict scrutiny, the criminal prohibition must be narrowly drawn to serve that compelling interest: “The First Amendment requires that the Government’s chosen restriction on the speech at issue be ‘actually necessary’ to achieve its interest.” United States v. Alvarez, 132 S. Ct. 2537, 2549 (2012) (plurality opinion) (quoting Entm’t Merchs. Ass’n, 131 S. Ct. at 2738). The narrow tailoring requirement dictates that “[i]f a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative” rather than prohibit Anderson’s actions under the criminal law. Playboy Entm’t Grp., 529 U.S. at 813; see also Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010).
Anderson argues that the law as applied here is not narrowly tailored because it encompasses an image that clearly depicts adult bodies and because it punishes “private” distribution of a morphed image. But the harm a child suffers from appearing as the purported subject of pornography in a digital image that is distributed via the Internet can implicate a compelling government interest regardless of the image’s verisimilitude or the initial size of its audience. Anderson’s distribution targeted M.A. through her Facebook account, and the image suggested her involvement in sexual intercourse as an eleven-year-old child. There was no less restrictive means for the government effectively to protect this child from the exploitation and psychological harm resulting from the distribution of the morphed image than to prohibit A
It is an interesting decision. The question is not whether Anderson should have been prosecuted. He deserves to go to prison. The question is the charge. He was exposing a child to pornographic images and seeking to inflict emotional distress. That seems abundantly clear. However, the question is whether he produced child pornography when no child was photographed and indeed the child knew that the image was false since it was her picture. It seems more like a threat and certainly stalking. What is fascinating is whether such alternative charges should factor into strict scrutiny analysis. If there are other such felonies (or can be such felonies if passed by the legislature), can the court still conclude that there is “no less restrictive means for the government effectively to protect this child from the exploitation and psychological harm.”
Conversely, if pasting the image of a child’s face on such a picture is child pornography, wouldn’t the same act be pornography if someone pasted an adults face on an image and sent it to that person? Would that mean that claim pranks or taunts would now be prosecuted as pornography? Where does one draw the line in such cases?
Once again, the question is not a serious felony prosecution and jail time for Anderson. The question is the proper charge. What do you think?
The case is United States v. Anderson, 2014 U.S. App. LEXIS 13639.
The reason that it is problematic to classify something such as this as “child pornography” is because *mere possession* of child pornography is a crime. While there is a general First Amendment right to create (draw) and possess obscene materials in privacy even if the government can legally restrict its distribution (even among consenting adults), this right does not extend to child pornography. The logic in the original case distinguishing the general right to possess obscene materials is that children are hurt in the production of child pornography, and much of it is made for trade, and the need to stop child abuse is extremely compelling, so its mere possession may be criminalized.
The problem with a case like this is that the logic of criminalization of possession – that a child was hurt in the making of the image – is inapplicable. Obviously this man committed a very serious crime by stalking and harassing the girl, but the classification of the image as child pornography means that he had in fact committed several very serious crimes (by the letter of the law) the second he created the image in the privacy of his own home. Indeed, he could have been subject to prosecution even without ever emailing the girl.
Can the lawyers answer this: Doesn’t his sending the photo to the child constitute a separate crime, in ADDITION to his possession of the child porn?
I believe that pedophiles are rarely arrested the first time they victimize a child. I suspect he may have done this before. Since it’s gone so far in court, perhaps he did not confess to any other crimes. But there is a chance that the notoriety of the case will spread his image around enough that more victims will come forward.
Paul – it was my understanding that the legal argument that modified images is too broad a term pertained to cartoons like anime porn, which I think is called something like Hentai, or something that sounds like that. Just as you brought up.
But I think a photo of an actual child photoshopped onto a woman’s naked body, having sex, and then sent to that child crosses that line. It sexualizes the image of a real child. It seems like an effort at grooming (or terrorizing, I’m not sure which.)
I’m not a lawyer, but to me, a lay person, that crosses the line into porn. And it also really makes me want this guy off the street.
Several Nebraska state laws could be used to prosecute this defendant.
The feds should leave it to state prosecutors, or modify the federal statute.
It has to involve interstate commerce, and other pretzel maneuvers, or the like, for federal law to apply to what are traditionally state crimes.
I don’t agree that the exchange of sexual imagery between two private individuals of depictions of themselves constitutes distribution of pornography for the purposes of the criminal law. Surely this guy could be charged with other crimes such as the communication with a minor for immoral purposes type of laws but distribution, not in this case.
Darren – I think there is a crime of distribution of pornography to minors and he would be guilty of that.
The Fifth Grade Class posted a list of possible names for the dork in the photo:
Lou Bitgood, Pat McGroin, Seymore Butts, Mike Hawk, Heywood Jablome, Hugh Jass, Hugh G. Rection, Dick Hertz, Hugh Janus, Connie Lingus, Kraven Moorehed, Jack Mehoff, Shi Ton Mi, Harry Weener, Dixie Normus, Dixie Rect, Howie Feltersnatch, Jack Offalot, Halotta Fagina, Patty O’Furniture, Harry P. Nass, Wee Tard, Phil Uranus, Stu Pidasso, Ben Dover, and Mike Hunt. Pete O. File, Phillip A. Butt
If it passes the mutarde of the Fifth Grade then his new name should be chosen from the above and the filtered through the civility censors. I sort of like Pete O. File.
If this is child porn, then him sending it to the child is NOT an element of the crime. If it’s child porn, then he would still be guilty of possession of child porn even if he never sent or showed it to anyone.
How about removing the photo of dork head here? It is depressing.
So when charging with child pornography the prosecution must demonstrate that a real child was involved? and photoshopped photos don’t count as porn? If that’s the case, the law needs to be changed. I’m not sure what this guy should be charged with but his behavior certainly seems threatening at the least.
His behavior was criminal.
It just wasn’t child porn.
Paul: It is my understanding that he photoshopped a photo of a woman having sex by replacing the woman’s face with the child’s, and then sent it to the child’s FB account. So it looked like a child’s face on a woman’s body. And it subjected the child to seeing those images. Poor thing.
Karen – anime porn using animated children is not considered child porn. That is why I am of the opinion that this is not child porn. Sick yes. Does the guy deserve prison time? Yes.
I do feel it was child porn, because the photoshopped image made it look like a real child was having sex. “modified to appear that an identifiable minor is engaging in sexually explicit conduct.” Luckily, she was not physically assaulted, as is done in the creation of other types of child porn. If it was not considered porn, then her image could have been legally distributed around the world.
He is a sick man.
This is exactly why children should not be allowed to have FB, Twitter, or other social media accounts. If children use the computer, it should be in the kitchen or other family area, with the screen viewable by any parent passing by. It is an outlet to allow strangers into the home and have access to talking to our kids. Older teenagers, if they are allowed to have social media accounts, should have to give their passwords to their parents. And I think it’s a bad idea for teenagers to have much online presence, as well, since their maturity levels make them more likely to be either the perpetrator or the victim of cyber bullying.
The problem in this case is defective drafting of legislation, and the additional problem is the courts then using latin word duct tape and scrap material to try to put humpty dumpty back together again with puffy words and sanctimonious language as icing on the cake.
He could have been charged with state law crimes that would have put him away.
Judicial activism is another way of saying “hard cases make bad law.”
Paul, the photo was a naked woman having sex.
Exposing the child to porn I would agree with, however I am not sure showing an 11 year old a picture of a naked woman is pornographic. I just do not see it as child porn.
I will not hazard a foray into any prong of the First Amendment.
This guy will get a prong in prison. And he will be discussing rear end collisions for the rest of his life. Dork face gets you nowhere. Photo says a lot. Kids all over America should mail him faux photos of himself getting rear ended.
A stupid prank gone bad? Do a search on Obama or Hillary photo shopped pictures.
Images in the age of unlimited editing of them by anyone are deceiving. This case seems to be more about the aggressive intent than any actual child pornography, which I do not see here. Child porn mean kids are involved in the act. Cut and paste is not the same thing not by a mile.
I have a tough time criminalizing images of anything to begin with.
I mean the images themselves – certainly if the images are depicting a crime that actually occurred then they are evidence of the crime.
So ok, notwithstanding my objection, we have penal laws criminalizing the image of a crime, that is a given.
But now, we are not even criminalizing images of a crime, we are criminalizing an an image of an imaginary depiction of a crime.
This is definitely a slippery slope. It criminalizes renditions of imagination put into an image. Even that image may not have a physical form, but rather pixels on a computer screen. This is so close to thoughtcrime as to actually be it, albeit there is something that people can point at or look at.
It is wrong. There are many crimes this man committed, but child pornography was not one of them.
I don’t know my thoughts on this. Hopefully commenters can give me some ideas. I lean toward it is not child porn, but a gentle breeze of reason could blow me the other way. We live in a sick world, that’s for certain.