Changing Faces: Morphed Child Pornography Images and the First Amendment

• Publication year: 2019

Changing Faces: Morphed Child Pornography Images and the First Amendment

Stacey Steinberg

CHANGING FACES: MORPHED CHILD PORNOGRAPHY IMAGES AND THE FIRST AMENDMENT

Stacey Steinberg^*

Abstract

Technology has changed the face of child pornography. The Supreme Court has held that child pornography harms a child both in the creation of the image and the circulation of the image, and thus has ruled that the possession and distribution of child pornography falls outside the realm of First Amendment protections. However, today's images depicting child pornography do not always depict an actual child engaged in a pornographic act. Instead, some images depicting child pornography are "morphed images."

Morphed child pornography is created when the innocent image of a child is combined with a separate, sexually explicit image, usually of an adult. The children depicted in these images are not harmed in the creation of the image, as they were not photographed while engaging in a sexual or obscene act. Nevertheless, the circulation of these images harms children. The distribution, or potential distribution, is damaging to the depicted child's emotional well-being and reputation. Furthermore, these morphed images could cause additional harm to other children, as pedophiles use child pornography to groom future victims.

In response to the changing face of child pornography and the harms associated with it, Congress enacted the PROTECT Act, which bans morphed images like the ones described above. Despite this effort to protect children's images online, there remains much to be done. First, the Supreme Court must uphold the PROTECT Act, finding that morphed child pornography is outside the scope of the First Amendment. Second, to respond to the harms morphed child pornography causes, states must amend their statutory definitions of child pornography. Lastly, parents must be cognizant of the risk associated with oversharing pictures as these images can be stolen and then used for illicit purposes. This proposal balances a defendant's First Amendment right to free

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speech against the harms caused by the circulation of morphed images depicting child pornography.

Introduction.............................................................................................911

I. Child Pornography and the First Amendment........................913

A. Child Pornography Jurisprudence from Inception to the Advent of Computer Morphing Technology ......................................... 913
B. Addressing the Changing Face of Child Pornography: Congress's Failed Attempt to Ban Virtual Child Pornography .................. 915
C. A Grey Area in the Law: Congress's Attempt to Overcome the Free Speech Coalition Decision ............................................... 918

II. Morphed Images of Child Pornography: The PROTECT Act in Court...........................................................................................920

A. Federal Court Cases Involving Morphed Child Pornography . 920
B. State Court Cases Involving Morphed Child Pornography...... 924

III. A Three-Part Prescription to Address the Changing Face of Child Pornography.......................................................................928

A. The Supreme Court Should Find the PROTECT Act to Be Constitutional with Respect to Morphed Child Pornography 928
B. State Legislatures Should Amend Their Child Pornography Statutes to Encompass Morphed Child Pornography ............... 933
C. Law Enforcement Should Oversee a Public Health Campaign Aimed at Educating Parents of the Risks Posed by Sharing a Child's Image Online ............................................................... 935

Conclusion.................................................................................................937

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Introduction

As technology evolves, so too does the face of child pornography. Child pornography traditionally depicted actual child sexual abuse. These images fall outside the protection of the First Amendment and their possession and distribution constitutes a criminal offense under federal and state laws.¹ With the advent of computer morphing software, today's child pornography images sometimes do not depict actual abuse.² Some of these images are virtual and do not involve images of actual children at all.³ Despite Congress's attempt to criminalize all obscene images depicting children, the Supreme Court has held that possession and distribution of images that look like, but are not actually children is protected speech under the First Amendment.⁴

Morphed child pornography falls between traditional child pornography and virtual child pornography. These images involve actual children; however, the full image often combines an "innocent" image of a child with a sexual or nude image of an adult.⁵ Through morphing, pedophiles create and often share these pornographic images.⁶ To protect children from this computer technology, Congress enacted the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act).⁷ This Act prohibits all obscene images that depict children, regardless of whether a child was abused in the image's creation.⁸

The creation and distribution of morphed images is becoming increasingly common. often, the innocent child image component of morphed images originates on social media and blogs.⁹ Parents often share their children's

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pictures in a variety of ways, and images that may not appear prurient to the average viewer might elicit an unexpected and inappropriate response if viewed by a pedophile or someone with pedophiliac interests.¹⁰ Unbeknownst to parents, viewers can save their children's images and later use them to create morphed child pornography.¹¹ While there is limited data reflecting how common this practice is, Canadian law enforcement officers report that this practice is worrisome to their department.¹² Moreover, the Australian Children's eSafety Commissioner reported that about 50% of all images on one pedophile image-sharing site with at least forty-five million images originated on social media and family blogs.¹³

While the children depicted in morphed images are usually not harmed in the image's creation,¹⁴ these children can potentially suffer significant harm once a morphed image is circulated. To protect children from the harm of circulation, courts should hold that shared morphed images depicting child pornography fall outside the protection of the First Amendment.

Part I of this Article will explore the historical underpinnings of First Amendment jurisprudence as it pertains to actual child pornography from its inception as a criminal offense, to the morphed images depicting child pornography of today. Part II of this Article will discuss the harms morphed images cause. It will also explore the harm that circulation of other private material that is sexual in nature causes and discuss how this harm has been balanced against a defendant's right to free speech. This nuanced approach allows us to better understand how courts might balance the harm that circulation of a morphed image causes with the First Amendment. Lastly, Part III of this Article lays out a cogent path forward. It proposes a workable solution that balances a defendant's First Amendment right to free speech against the harm that circulation of morphed images causes.

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I. Child Pornography and the First Amendment

In most cases involving child pornography before the mid-1990s, the distinction between harm in pornography's creation and harm in pornography's circulation was of little to no consequence.¹⁵ This is because computer technology had not advanced enough for an image of child pornography to exist that did not originate with the actual occurrence of a criminal act.¹⁶ Indeed, child pornography before the 1990s captured the abuse of the child in the pornographic image.¹⁷ Without the advance of computer technology, there could be no child pornography created without harming and abusing an actual child.

A. Child Pornography Jurisprudence from Inception to the Advent of Computer Morphing Technology

The U.S. Supreme Court first recognized the child pornography exception to the First Amendment in the case of New York v. Ferber.¹⁸ In that case, a bookstore sold two videos of young boys masturbating to an undercover police officer.¹⁹ The state charged the defendant under its state statute criminalizing child pornography.²⁰ The statute reads, in relevant part, "[a] person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age."²¹ The defendant challenged the conviction on First Amendment grounds.²² However, the Court disagreed, holding that distribution of child pornography, as defined in the New York state statute, fell outside the protection of the First Amendment.²³ The Court explained that under a strict scrutiny test, the state had

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an interest in protecting children from the harm these images cause and that this interest outweighed the defendant's right to free speech.²⁴

In its opinion, the Court discussed the specific harms child pornography causes.²⁵ First, the Court recognized that "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child."²⁶ Second, the Court noted that the images created a "permanent record of the children's participation and the harm to the child is exacerbated by their circulation."²⁷ Third, the Court held that "[t]he advertising and selling of child pornography provide an economic motive for, and are thus an integral part of the production of such materials."²⁸ Fourth, the Court addressed the societal value of the images at issue, holding that any value, if there was any at all, was de minimis.²⁹ Lastly, the Court...