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Fake Child Porn of Half-Sister Is Actually a Close Case

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By William Peacock, Esq. on July 31, 2014 6:33 PM

In 2012, M.A., an 11 -year-old girl in Nebraska, began to receive unsolicited sexually explicit messages on Facebook from a fictional individual named Bob Shepard. Local law enforcement investigated and soon discovered that Bob Shepard was actually Jeffrey Anderson.

Anderson is M.A.'s half-brother.

An officer took control over M.A.'s Facebook account and, sure enough, Anderson continued with his dark, incestuous fantasizing by sending a sexually explicit image to M.A.'s account. The image, which originally depicted two adults engaged in consensual fornication, had Anderson's half-sister's face superimposed on the adult female's body. The image was captioned: "This is what we will do."

Needless to say, he was arrested, convicted, and given a very long sentence of 120 months. He now argues that his conduct was protected speech under the First Amendment.

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Actual Child Porn: Not Protected

Authentic pornographic images containing actual children are not protected by the First Amendment. In New York v. Ferber, the U.S. Supreme Court held that child pornography is one of a few rare categories of speech that are categorically not entitled to First Amendment protection.

The government argued that Anderson's morphed image fits into this categorical exemption because an actual girl's face was used in the image. But the Sixth Circuit disagreed, citing the Supreme Court's discussion of Ferber in the 2010 animal "crush video" case. In United States v. Stevens, the Court refused to recognize a categorical exemption to the First Amendment for depictions of animal cruelty. It also noted that the justification for the Ferber categorical exemption laid in the speech's inherent integration with criminal conduct -- the sexual abuse of minors inherent in producing child pornography.

Fully Fake Child Porn: Protected

A second category of images, fully fake images, was addressed by the Supreme Court's well-known decision in Ashcroft v. Free Speech Coalition. In that case, the Court struck down two provisions from the Child Pornography Prevention Act of 1996 (CPPA), which prohibited "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" that it depicts "a minor engaging in sexually explicit conduct."

The takeaway from the opinion was that "virtual" child porn is protected by the First Amendment because it prohibits speech that records no crime and creates no victims by its production.

'Morphed'/Hybrid Images Are a Mixed Bag

The government also pointed to a prior Eighth Circuit case, United States v. Bach, where the defendant superimposed the head of one juvenile onto the body of a second juvenile who was "sitting in a tree in a lascivious pose with a full erection." In other words, the defendant recycled child porn to create new, fake child porn. The panel held that the First Amendment did not protect that defendant's conduct because "a lasting record has been created of AC, an identifiable minor child, seemingly engaged in sexually explicit activity. AC was thus victimized every time the picture is displayed."

That case would seem to control here, but the panel, pointing to the Stevens animal-cruelty video case's interpretation of Faber, noted that a child was harmed in the production of the Bach image.

Here, the original image was of two adults -- no child was harmed in the production of the image. Does that mean Anderson, the pedophile with incestuous fantasies, goes free?

Not so much. Even with First Amendment protection, the conviction stands if it withstands strict scrutiny. The panel recognized the government's compelling "interest in safeguarding the physical and psychological well-being of a minor." And like the victim in Bach, "a lasting record has been created of [her] ... seemingly engaged in sexually explicit activity. [She] is thus victimized every time the picture is displayed."

As for narrow tailoring, "[t]here 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 Anderson from disseminating it."

As the Supreme Court noted in dicta in Free Speech Coalition, "morphed images ... implicate the interests of real children and are in that sense closer to the images in Ferber." Not close enough for categorical exemption from the First Amendment's protections, it seems, but close enough to present a compelling interest in stopping Photoshop pedophiles.

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