Semi-virtual child pornography

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The Manchester Union Leader carries the story of a man facing jail time for creating "child pornography" by photoshopping the faces of real children onto the bodies of people engaging in sexual behavior.
Zidel was accused of juxtaposing the heads and faces of campers onto images that depicted the youngsters engaging in sexual activity. Those images, saved on a CD ROM, were accidentally given to the camp's director, according to the press release.

While Zidel's attorney admitted that his client knew the campers depicted in the photos were under 16 years old, the attorney argued the images were not child pornography because the children were not subjected to sexual content, according to the press release.

Assistant Hillsborough County Attorney Nicole Fortune prosecuted the case and argued that the images were child pornography, as the law was designed to protect children from being depicted as engaging in sexual activity.

Over Fortune's objection, Lewis allowed Zidel to remain free on $50,000 cash or corporate surety bail.

Zidel faces a maximum of 3 1/2 to 7 years in prison on each of the nine counts. A presentencing hearing has not been scheduled. Fortune said she expects sentencing to take place within the next couple of months.

From a legal perspective, this is a tricky case: child pornography is not a protected 1st Amendment class (see N.Y. v Ferber) but purely virtual child pornography is protected (see Ashcroft v. Free Speech Coalition). The reason for this is that Ferber's rationale for why prohibiting child pornography is that its production is intrinsically tied to child abuse, which is harmful to children. Virtual child pornography isn't. This obviously falls somewhere in the middle here, so who knows what side the courts will come down on.

From an ethical perspective, it's tricky as well. Obviously, children probably aren't going to be real happy about there being wide distribution of pornography with their faces on it. On the other hand, there's lots of legitimate non-pornographic pictures of me from when I was a kid that I'd be pretty unhappy to see posted on the Internet. All things considered, I think I might be more unhappy with the idea that people were seeing how goofy I looked back then than that my face was on porn. The production of this kind of pornography doesn't involve child abuse--in fact the subjects would never have even known if Mr. Zidel hadn't screwed up. So, it's creepy and embarassing, but it's not clear to me that's sufficient rationale for banning it--assuming that one otherwise wouldn't be willing to ban pornography. The problem with banning things on the basis of creepy and embarassing is that we get into some serious edge cases: what if Mr. Zidel had just picked models that looked a lot like the subjects and then photoshopped them to look even more so--without using any photos of the subjects? Or what if he'd just sketched them naked? Obviously, that's pretty creepy, but it would be just about equally creepy if he'd done it too adults. At some point if you care about free speech you've just got to live with creepy.

3 Comments

Doesn't the Supreme Court (still) recognize an obscenity exception to the First Amendment? (Or was it abolished while I wasn't looking?) And if child pornography doesn't qualify under that exception, is anything left that could?

(Now, I know that American Constitutional scholars and jurists hold the First Amendment sacrosanct, and only countenance exceptions to it in cases of speech that poses a truly grave danger to the nation, such as sexual innuendo in the workplace, or mention of candidates for office in advertisements during elections. But still....)

I refer you to New York v. Ferber (linked off the main text) for the answer to your question.

This is related to something I've had a problem with for a while:


One technique that's used to catch Internet pedophiles is to have someone pose as a child and get a solicitation from the perv. When he goes to meet the "child", he is arrested.


Consider: If you proposition a 12-year-old, it's no defense to say that you thought she was 20. What matters isn't what you thought, but what you did.


So why is it a crime to proposition a 20-year-old, just because you thought she was 12? You did not, in fact, do anything wrong, though you thought you were doing so.


Of course we want to get these people "off the street", get them psychiatric help, and ensure that they won't take advantage of kids. I'm just not sure about some of the techniques we're using to catch and prosecute them.

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