By: Katharine Rodriguez
There is no other group of people in the world that deserve more representation than those who are unable to represent themselves: children. Prior to the 1970’s there were no laws or legislation criminalizing child pornography.[1]Considering that the media and film industries did not take off until the mid 1930’s, this was truly unchartered territory. However, with the magnitude of what technology has become today, offenders have stepped into the realm of morphed child pornography—another form of child exploitation.
In the 1983 case, Shields v. Gross, well-known actress, Brooke Shields, was seeking to enjoin the future use of pornographic images taken of her at the age of ten. At the time, her mother was her manager and guardian, thus, she was voiceless in making the decision to take the pornographic images. However, regardless of her thoughts on the photos themselves, at the age of 18, she did not have the power to manage where such photos went. The Court of Appeals of New York ruled that a minor cannot disaffirm their written consent to allowing the use of their pornographic images for advertising. Consent of which was given by her legal guardian.
Since the Shields case, further legislation has been implemented to protect children from sex crimes and child pornography. The Department of Justice filed the PROTECT Act of 2003 which sought to help reinforce the rights of children with respect to child pornography.[2] However, with everchanging technology, the newfound rise of morphed child pornography has introduced a new and unexplored legal territory.[3] So, what is morphed child pornography? Morphed child pornography is the use of real children’s image and likeness superimposed onto other pornographic images of adults performing sexual acts. This is not only damaging to a child’s reputation, but to their psyche. The trauma that comes along with regular child pornography is unimaginable because it is actual abuse. However, explaining to a child that their image will forever be superimposed onto sexual images without performing them is rather damaging. Additionally, the obscene images will likely be used by predators which is unsettling and criminal.
The legal issue that comes into play is that the child is not being hurt physically in any way, therefore, the child is not being harmed. Currently, circuit courts are minor disagreement as to whether the morphed images constitute protected speech under the First Amendment. The Fifth, Second, and Sixth Circuits agree that morphed child pornography is “unprotected speech”.[4] Although this issue has not yet been reviewed by the Supreme Court; this conflict is extremely important to note. The PROTECT Act of 2003 intends to protect children with respect to real child pornography, however, in the 2020 case United States v. Mecham, the fifth circuit held that morphed child pornography is outside the scope of the First Amendment, “[w]e agree with the majority view that morphed child pornography does not enjoy First Amendment protection. . .” [5] The Fifth Circuit made it clear that, “Without contemporaneous emotional harm, an image must portray physical pain to be deemed sadistic.”[6] Thus, because there is no physical harm to the child, the morphed image does not fall under such category. In United States v. Anderson, the Eighth Circuit stands alone in finding that morphed child pornography can be criminalized if there is a tangible crime attached to such images, for example, sexual abuse.[7] However, it remains relatively clear that morphed child pornography is not considered protected speech just yet. This raises an important question the legal community should ponder on if they want to continue protecting the rights of children with respect to such obscenities: should morality and common sense be the governing voice with respect to this newfound grotesque manner of exploitation? In this world of technology, it is crucially important for a child’s image to be protected.
[1] A Brief Overview of Child Pornography Laws and Key Problems, Stobbs Law Offices (Jan. 3, 2022), http://www.stobbslaw.com/blog/2014/05/a-brief-overview-of-child-pornography-laws-and-key-problems/.
[2] S.151 – 108th Congress (2003-2004): PROTECT Act, S.151, 108th Cong. (2003), https://www.congress.gov/bill/108th-congress/senate-bill/151.
[3] Julia Zazzo, Circuits are Splitting Hairs Over Morphed Child Pornography, Northwestern Law Review Of Note, https://blog.northwesternlaw.review/?p=2499.
[4] Id.
[5] United States v. Mecham, 950 F.3d 257, 260 (5th Cir. 2020).
[6] Id. at 267.
[7] Julia Zazzo, Circuits are Splitting Hairs Over Morphed Child Pornography, Northwestern Law Review Of Note, https://blog.northwesternlaw.review/?p=2499.
