Morphing and the 1st Amendment

As you may know, in New York v. Ferber, 458 U.S. 747 (1982), the U.S. Supreme Court held that child pornography is not entitled to protection under the 1^St Amendment for two reasons: One is that children are physically and emotionally abused in creating child pornography. The other is that child pornography “constitutes a permanent record of a child’s participation” in sexual activity and the “harm to the child” resulting from such participation is “exacerbated by [its] circulation”. New York v. Ferber, supra.

And as you probably know, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the U.S. Supreme Court held that the Ferber rationales, which relied on the use of real children to create child pornography, did not justify criminalizing virtual child pornography, i.e., child pornography the creation of which did not involve the use of actual minors. The Ashcroft Court rejected the government’s argument that virtual child pornography could constitutionally be banned because the material “whets the appetites of pedophiles and encourages them to engage in illegal conduct” and/or because pedophiles use the material to seduce children. Ashcroft v. Free Speech Coalition, supra.

The Ashcroft Court did not decide whether the 1^st Amendment bars the criminalization of morphed child pornography because the statutory provision that addressed morphing was not at issue in that case. Ashcroft v. Free Speech Coalition, supra. The Ashcroft Court did offer a few comments on morphing:

Rather than creating original images, pornographers can alter innocent pictures of real children so that the children appear to be engaged in sexual activity. Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber.

Ashcroft v. Free Speech Coalition, supra.

That brings us to U.S. v. Hotaling, __ F.3d __, 2011 WL 677398 (U.S. Court of Appeals for the 2d Circuit 2011). John Hotaling was convicted of possessing child pornography in violation of 18 U.S. Code § 2252A(a)(5)(B) and appealed. U.S. v. Hotaling, supra.

After being indicted, Hotaling pled guilty. U.S. v. Hotaling, supra. He admitted to creating and possessing sexually explicit images of

six minor females (Jane Does # 1-6) that had been digitally altered by a process known as `morphing.’ . . . [T]he heads of the minor females had been `cut’ from their original, non-pornographic photographs and superimposed over the heads of images of nude and partially nude adult females engaged in `sexually explicit conduct’. . . .

One of the photographs had Hotaling's face `pasted’ onto that of a man engaged in sexual intercourse with a nude female who bore the face and neck of Jane Doe # 6. At least one additional photograph had been altered to make it appear that one of the minor females was partially nude, handcuffed, shackled, wearing a collar and leash, and tied to a dresser.

Hotaling obtained the images of Jane Doe # 1 from a computer he was repairing for her family and the images of Jane Does # 2-6 from photographs taken by his daughters and their friends. While there is no evidence that [he] distributed or published the morphed photographs via the internet, some of the photographs had been placed in indexed folders that could be used to create a website.

They were encoded in Hypertext Markup Language (`HTML’), bore annotations that they were `[g]enerated with Arles Image Web Page Creator,’ and labeled with the internet uniform resource locator (`URL’), `www.upstateteens.com.’ All of the HTML images were titled `[Jane Doe] Upstate NY's Hottest Teen’ and bore the actual first name of the minor depicted.

U.S. v. Hotaling, supra. The district court explained that Hotaling altered the

non-pornographic images using a computer software program together with pornographic images he obtained via the Internet and his internet service provider America Online. . . There is no evidence that the bodies of the unidentified nude females in the altered images are those of minors. However, the parties agree that the bodies depicted are not virtual or computer generated.

U.S. v. Hotaling, 599 F.Supp.2d 306 (U.S. District Court for the Northern District of New York 2008).

After being indicted, Hotaling moved to dismiss the indictment on the grounds that it violated the 1^st Amendment because he was being prosecuted merely for possessing morphed Images, i.e., images that have been

altered to appear to depict identifiable minors engaged in sexually explicit conduct. [He] contends that no actual child engaged in the conduct or activities depicted in the altered images and they were produced `without exploiting minors.’ Further, [Hotaling] argues there is no evidence that he distributed or published the morphed images to anyone. Indeed, [he] claims he created these composite images merely to `record his mental fantasies.’

U.S. v. Hotaling, 599 F.Supp.2d 306, supra.

Hotaling argued, therefore, that under the Supreme Court’s holding in Ashcroft, the charge against him violated the 1^st Amendment and must be dismissed. U.S. v. Hotaling, 599 F.Supp.2d 306, supra. After the district court judge denied his motion to dismiss, Hotaling appealed to the 2d Circuit Court of Appeals. U.S. v. Hotaling, supra.

On appeal, Hotaling argued that “the interests of actual children were not implicated [by the morphed images] because they were not engaged in sexual activity during the creation of the photographs.” U.S. v. Hotaling, supra. He made this argument in an attempt to distinguish the facts in his case from those at issue in U.S. v. Bach, 400 F.3d 622 (U.S. Court of Appeals for the 8^th Circuit 2005). U.S. v. Hotaling, supra.

In Bach, the defendant morphed the face of a known minor onto a lasciviously posed body of another minor. . . . Hotaling's proposed differentiation . . . is misplaced because in Bach the court based its decision on the presence of a minor's recognizable face, finding that, `[a]lthough there is no contention that the nude body actually is that of [the minor] or that he was involved in the production of the image, a lasting record has been created of [him], an identifiable minor child, seemingly engaged in sexually explicit activity.’ . . . .

The court [held] that `[t]he interests of real children are implicated in the image received by Bach showing a boy with the identifiable face of [a minor] in a lascivious pose. This image involves the type of harm which can constitutionally be prosecuted under Free Speech Coalition and Ferber.’

U.S. v. Hotaling, supra (quoting U.S. v. Bach, supra).

The 2d Circuit rejected Hotaling’s and agreed with the 8^th Circuit that the interests of

actual minors are implicated when their faces are used in creating morphed images that make it appear they are performing sexually explicit acts. In this case, even though the bodies in the images belonged to adult females, they had been digitally altered such that the only recognizable persons were the minors. Furthermore, the actual names of the minors were added to many of the photographs, making it easier to identify them and bolstering the connection between the actual minor and the sexually explicit conduct.

Unlike the computer generated images in Free Speech Coalition, where no actual person's image and reputation were implicated, here we have six identifiable minor females who were at risk of reputational harm and suffered the psychological harm of knowing ttheir images were exploited and prepared for distribution by a trusted adult.

U.S. v. Hotaling, supra.

The 2d Circuit also rejected Hotaling’s argument that “he merely possessed the photographs, whereas the defendant in Bach had received morphed photographs via the internet.” U.S. v. Hotaling, supra. After noting that the images “fit clearly within the bounds of Ferber” and that the Supreme Court “has made it clear that the harm begins when the images are created”, the 2d Circuit cited other concerns as justifying its rejection of Hotaling’s 1^st Amendment argument:

[W]e are especially concerned with the particular formatting and preparation of these sexually explicit images. [Hotaling] had carefully indexed and labeled many of the images with an internet URL and encoded the files in HTML, which is used almost exclusively for publication on the internet. . . . These are not mere records of [his] fantasies,, but child pornography that implicates actual minors and is primed for entry into the distribution chain.

U.S. v. Hotaling, supra. The Court of Appeals held that “[s]exually explicit images that use the faces of actual minors are not protected expressive speech under the First Amendment.” U.S. v. Hotaling, supra.

The 2d Circuit therefore affirmed Hotaing’s conviction and, in a separate portion of the opinion, the sentence of 78 months in prison imposed on him. U.S. v. Hotaling, supra.