"Morphed" Child Pornography: Lost Between Ferber and Ashcroft

    Last week a court in Baldwin County, Alabama convicted 55 year old Ronald Jay McFadden of possessing and producing child pornography.  According to this article, the defendant created some sort of visual collage by pasting together photos of nude adults with separate pictures of children. The defense attorney plans to appeal, offering up the First Amendment as a basis for reversal. If the facts asserted in the article are true, none of the children themselves were engaged in sexual acts, there was no sexual assault, and no camera admitted into evidence. The pictures of the children, taken alone, were "innocent" to use her words, and cut from magazines and medical books before being arranged on a piece of cardboard interspersed with images of adult porn.

The case appears to fall somewhere between New York v. Ferber and Ashcroft v. Free Speech Coalition. Ferber allows a state to prosecute "mere possession" of child pornography because its production involves physical and emotional abuse of children, and because the psychological trauma is reinforced in the distribution of images that record the event. What states can’t prohibit is "virtual child pornography," that is, computer generated sexualized images that do not involve real children. No actual children, no actual harm, said the Ashcroft Court. The statute in that case also prohibited "computer morphing" described as altering innocent pictures of real children so they "appear to be engaged in sexual activity." But that wasn’t an issue in the case, and the Court said nothing about it other than to acknowledge the possible relevance of Ferber in an actual challenge.

So where would this leave Mr. McFadden? Ashcroft doesn’t quite fit because the children depicted in his collage were real children. No pixels. No computer code. But Ferber doesn’t quite fit either. None of the children were photographed in a sexualized manner so none could have been harmed in the original production.

But is it accurate to say there was no real injury? Or at least risk of injury?  No psychological harm if those real kids happen upon the images later in life? Does it matter how old they are when photographed? When the images are discovered? How crude or unbelievable the images appear?

On that last point, the Court’s reference to Ferber on the issue of "computer morphing" in Ashcroft is surely relevant. "Morphing" images of real children via computer would no doubt produce a much more life-like simulation than a glue stick and tape. The process used to sexualize the images of real children might not be relevant in some circumstances but it might matter if the resulting visuals are so artificial that no reasonable person would mistake them for children in fact engaged in sexual activity.

If these considerations don’t work for Mr. McFadden on appeal (and I’m not saying they should), perhaps they’ll at least give lawmakers something to think about when drafting future anti-child pornography legislation.

-Kathleen A. Bergin

cross-post The Faculty Lounge