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Blogger Perez Hilton Backpedals in Miley Cyrus Flap

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By Jason Beahm on June 16, 2010 3:02 PM

Blogger Perez Hilton is facing potential legal trouble for allegedly posting an explicit photo of 17 year-old Miley Cyrus, supposedly taken when the pop star was climbing out of a car. The photo apparently shows Cyrus without underwear. This wouldn't be the first time that Hilton has posted up-skirt photos of celebrities; he has posted up-skirt shots of Britney Spears in the past. But this time, the difference is that Cyrus is underage.

The latest buzz shows Hilton backpedaling, claiming that Cyrus was clearly wearing underwear. Perez has now released a video statement to answer to the widespread accusations and criticism. Hilton stated, "I like to be controversial...but I don't want to go to jail," adding that Cyrus was not exhibiting any nudity. 

However, this position seems to contradict his own post which originally stated, "If you are easily offended, do NOT click here. Oh, Miley! Warning: truly not for the easily offended!" In addition, after the controversy began, Hilton immediately took the photo down.

Los Angeles criminal defense attorney Jeffrey Douglas, who specializes in child pornography cases, believes that Hilton made a massive mistake that he cannot erase. He told Salon.com that it was "suicidal" for Hilton to distribute the image. "We're not talking about a misdemeanor ... You don't have to know what the definition of the law is; all you have to do is knowingly distribute the photograph."

Even if the image had been Photoshopped, Douglas says Hilton could still be in breach of child pornography laws. According to Douglas, child pornography cases arise even with manipulated images such as pasting a teenagers head onto an adult's body. "That is still a crime, and it is punishable just the same."

However, criminal defense attorney Christopher Leibig tells Eonline.com that the prospect of Hilton facing jail time, or ultimately even being charged, seems relatively low, noting that it only involves one image, no overt sexual acts are depicted and stating that "it just doesn't reach the same evil that these laws were intended to prohibit."

Possession, let alone transmission of a single image can, however violate child pornography laws. In addition, the image does not have to depict a sexual act. Images depicting "lascivious exhibition of the genitals or pubic area" also violate child porn laws. To determine whether an image is such a "lascivious exhibition," federal courts generally look at whether:

  • the genitals or pubic area are the image's focal point;
  • the setting is sexually suggestive;
  • the child is depicted in an unnatural pose or age-inappropriate attire;
  • the subject is nude, partially or fully clothed;
  • the image suggests a willingness to engage in sexual activity; and
  • the image is intended to elicit a sexual response in the viewer.

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