Image morphing can be a form of art expression, which may or may not be protected by First Amendment. Morphing refers to technological process that allows a computer user to distort, compress, or transform one picture into another.
Since the technology is widely available some people have used to produce sexually explicit materials such as digitally changed child pornography.
Child pornography is a serious crime by the law. With the technology evolution there has been an ongoing issue whether First Amendment protects simulated image or morphing fake images of children on adult engaging in sexual explicit activities. The act of digitally altering or morphing the image is considered a serious crime when minors are involved. In fact, the second US Circuit Court of Appeals in 2002 ruled that the First Amendment does not protect sexually explicit photos of adults that have been digitally altered to display the faces of children. This piece will examine if artistic expression through morphed digital images is a protected speech under the First Amendment. I will use the Ashcroft v Free Speech Coalition, 535 U.S. 234 (2002), Christopher Allen v Commonwealth of Virginia (2010), and the US Supreme Court case, the U.S. v. Hotaling U.S. v. Hotaling -599 F. Supp. 2d 306, 2008 U.S. Dist. LEXIS 98373 (N.D.N.Y, 2008)
The Child Pornography Prevention Act of 1996 (CPPA) expanded the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 U. S. C. §2256(8)(A), but also “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image (morphing) or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct,” §2256(8)(B), and any sexually explicit image that is “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression” it depicts “a minor engaging in sexually explicit conduct,” §2256(8)(D). Thus, §2256(8)(B) bans a range of sexually explicit images, sometimes called “virtual child pornography,” that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology. For this reason the Free Speech Coalition, an adult film entertainment trade association industry, in fear that their business would come under threat, filed the suit against John Ashcroft -Attorney General of the United States. They claimed that their free speech under the First Amendment was violated as the provisions of the Child Pornography Prevention Act of 1996 were vague and overbroad. On April 16, 2002 The US Supreme Court upheld the argument that provisions of the Child Pornography Prevention Act of 1996 were vague and that the CPPA was inconsistent with the Miller standard, which requires the government to prove that the work (digital image morphing) in question, taken as a whole, appeals to the prurient interest, is patently offensive according to community standards, and lacks serious literary, artistic, political, or scientific value. The U.S Supreme Court expanded the definition of child pornography to include any image of a minor who appears to be engaging in sexually explicit conduct or that is presented in that manner will be considered child pornography, and anyone posses it will be prosecuted. The Court held that the two above provisions were unconstitutional because they abridged "the freedom to engage in a substantial amount of lawful speech."
Christopher H. Allen v Commonwealth of Virginia FE-2006-663 (2007)
Christopher Allen of Virginia had a graphic design business that he conducted from his home. Allen decided to produce pornographic images by using his stepdaughter, his niece and several girls on his niece’s soccer team that he was coaching. He morphed the pictures of these little girls who were under age 10 with the images of adults engaged in sexually explicit acts. These images were considered extremely graphic. Allen was convicted. Allen filed for an appeal on the ground that the children whose images were involved did not actually participate in the sexual activity depicted. He also argued that United States Supreme Court protected his case under the 2002 decision in Ashcroft v Free Speech Coalition. In this case, the US Supreme Court struck down the part of the federal law, which sought to ban the production and possession of virtual child pornography that is computer-generated but does not involve real children. The Supreme Court of Virginia rejected this case saying that Allen used real children. Virginia Solicitor General Stephen McCullough wrote, “There is no constitutional right to posses sexually explicit morphed images of actual identifiable minors.” Allen is now serving 17 years in prison following his conviction on five counts of producing child pornography.
U.S. v. Hotaling -599 F. Supp. 2d 306, 2008 U.S. Dist. LEXIS 98373 (N.D.N.Y, 2008)
In the U.S. v. Hotaling, John Hotaling morphed the faces of minors onto adult females who were engaged in sexual activities. In this case, the 8th Circuit Court argued, “actual minors are implicated” by morphing. The minors who were involved were identifiable as their actual names were added to many photographs showing them engaging in sexually explicit conduct. The defendant (Hotaling) argued that his First Amendment right was violated as the statute which prohibited possession of child pornography was unconstitutionally overbroad and vague. Hotaling also added that the child pornography he digitally altered was protected speech because he was the owner of the photographs and he was serving them as “record of his mental fantasies,” and no actual minor was harmed or exploited during the creation of the photographs. Hotaling also argued that there was no evidence that he distributed the morphed images. He also argued that the personal interests of the girls, whose face images he used, were not implicated as they were not actually engaging in sexual activity during the process of morphing.
Hotaling was convicted for knowingly possessing materials, which contained an image of child pornography under 18 U.S.C. § 2252A(a)(5) (8). Congress had defined child pornography under 18 U.S.C. § 2256(8) as an “Any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where … such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaged in sexually explicit conduct.”
In the Hotaling case, the U.S Court of Appeals for the Second Circuit asserted that digitally altering sexually explicit photographs of adults to display the face of actual child is not protected speech by First Amendment and therefore subjected to criminal prosecution.
Above cases have explained the circumstances in which the art of image morphing fail to be a protected speech under the First Amendment.
Worth, Robert “Are Fake Pornographic Images Protected by First Amendment?” New York Times, 15 July 2001. Web 13 March 2011.
Greenhouse Linda” Supreme Court Upholds Child Pornography Law.” New York Times 20 May 2008 Web 13 March 2011.
Biskupic Joan. “Supreme Court Affirms Child Porn Law; Challengers said Rule could be used against Legitimate Movies USA today 20 may 2008 Web 13 March 2011.
Richey, Warren. “Supreme Court Rejects Appeal in Child Pornography Case. CS Monitor.com.” The Christian Science Monitor -10 Jan 2010 Web 15 Mar. 2011.