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.