A blog post

Morphed Image: Protected or Porn?

Mona Lisa with a My Little Pony HeadThe Eighth Circuit Court of Appeals upheld a conviction based on “morphing” an image to include a minor’s face as depicting child pornography. The appeals court rejected the man’s arguments that federal pornography laws, as applied to the “morphed image,” were not unconstitutional under the First Amendment of the United States Constitution. The “morphed image” was a couple having sex with a minor’s face superimposed over the adult female in the original image. If the man chooses to appeal, either the full Eighth Circuit Court of Appeals or the United States Supreme Court would have to reverse the decision.

THE CASE

United States Court of Appeals for the Eighth Circuit
United States v. Jeffrey A. Anderson
No. 13-2337
Filed: July 17, 2014
Copy of opinion: http://media.ca8.uscourts.gov/opndir/14/07/132337P.pdf

FACTS OF CASE

Jefferson Anderson, of McCook, Nebraska, using the name “Bob Shepherd,” allegedly sent “unsolicited, sexually explicit messages and images on Facebook” to a eleven-year-old girl, “M.A.”, who was actually his half-sister. M.A.’s mother notified the Nebraska State Patrol. An officer took control over M.A. Facebook account. Anderson sent an image, which “originally had depicted an adult male and adult female engaged in sexual intercourse, but Anderson digitally superimposed M.A.’s face over the face of the female.” There was a caption to on the image, which basically stated, “This is what we will do.” This altering of the image is commonly known as “morphing.” Anderson admitted to sending the image.

Anderson was charged, under federal law, with: distribution of child pornography, distribution of child pornography to a minor, production of child pornography, and enticement of a minor to engage in unlawful sexual activity.

FIRST AMENDMENT AND CHILD PORNOGRAPHY LAW

The First Amendment to the United Stated Constitution states, in part, “Congress shall make no law … abridging the freedom of speech.” The United States Supreme Court, in a number of decisions, has stated the First Amendment does not apply to child pornography meaning it is not protected speech.

A federal statute, 18 U.S.C. § 2256(8), defines, for certain purposes, “child pornography” as:

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where –

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

All of the offenses Anderson was charged with utilize this statutory definition.

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DECISION

The Court of Appeals rejected the government’s argument that the morphed image fell within the “historically unprotected” type of speech, which was the basis for the lower court’s decision. However, the Court did find that the law did satisfy another United States Supreme Court requirement, that of “strict scrutiny” finding:

Although subjects of morphed images like M.A. do not suffer the direct physical and psychological effects of sexual abuse that accompany the production of traditional child pornography, the morphed images’ “continued existence causes the child victims continuing harm by haunting the children in years to come.

The Court also rejected Anderson’s argument that the law punishes “private” distribution of a morphed image for the reason that the child suffers from appearing as the “purported subject of pornography in a digital image” regardless of the size of the audience. Thus, the government’ need to protect the minor trumps Anderson’s free speech argument.

CONCLUSION

I agree with the decision in this case. While I am a strong believer in free speech, there are limits. You are not allowed to yell “fire” in a crowded theater. Also, there is clearly a compelling interest in protecting children that can outweigh free speech rights. “Morphing” was not really possible before digital editing. Now, with digital editing tools everywhere and easy to use, along with the ease of sending messages, improper images can be sent cheaply and quickly. Most things on the internet are permanent, that is, not easily completed erased. This is one case in which the court has caught up to technology. In addition, the activity of the defendant in this case probably has and will cause the minor lasting emotional and psychological harm. There is also the possibility of the morphed image becoming public or viewed by more people subjecting the girl to even more harm.

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Jeffrey Lapin

Lawyer, Founder and Owner at Lapin Law Offices
I am a trial lawyer and the Founder and Owner of Lapin Law Offices. I represent injured, abused and disabled clients with caring, passion and dedication in Lincoln and throughout Nebraska.

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