Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, September 12, 2018

Steinberg on Morphed Child Pornography and the First Amendment @sgsteinberg

Stacey Steinberg, University of Florida College of Law, is publishing Changing Faces: Morphed Child Pornography and the First Amendment in the Emory Law Journal (2019). Here is the 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 were 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. However, there is still much to be done to protect children’s images online. 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 to include in its definition any image that is “created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” Lastly, parents must be cognizant of the risk associated with over-sharing pictures as these images can be stolen and then used for illicit purposes. This proposal balances a defendant’s First Amendment right to free speech against the harms caused by the circulation of morphed images depicting child pornography.

Download the article from SSRN at the link.

https://lawprofessors.typepad.com/media_law_prof_blog/2018/09/steinberg-on-morphed-child-pornography-and-the-first-amendment-sgsteinberg.html

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