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February 28, 2011
Second Circuit affirms conviction and sentence of creator of morphed child porn
The Second Circuit today handed down an interesting and notable child porn ruling in US v. Hotaling, No. 09-3935 (2d Cir. Feb. 28, 2011) (available here), which gets started this way:
Defendant-Appellant, John Hotaling, appeals from a judgment of the United States District Court for the Northern District of New York (Mordue, J.) of conviction for violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(C) and imposition of a sentence based on a specific offense characteristic sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(4). The district court concluded that the statute prohibiting possession of child pornography was not unconstitutionally overbroad as applied to defendant, nor unconstitutionally vague, and also applied a sentence enhancement on the basis of a photograph depicting sadistic or masochistic imagery. United States v. Hotaling, 599 F. Supp. 2d 306, 322 (N.D.N.Y. 2008). We conclude that the district court was correct in holding that child pornography created by digitally altering sexually explicit photographs of adults to display the face of a child is not protected expressive speech under the First Amendment. We also conclude that the application of the sentence enhancement based on a photograph that has been modified to portray a partially nude minor, restrained by handcuffs, a dog collar and leash, tied to a dresser was proper. Accordingly, we affirm.
February 28, 2011 at 01:46 PM | Permalink
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Comments
The reason why child pornography is illegal is because it creates a market for further child pornography. That is bad because it encourages more people to produce exploitative pictures and video of innocent children who will suffer irreparable harm for the remainder of their lives.
So with that background...how is digitally altered porn illegal under child porn laws? No child is being raped, and thus no irreparable harm and humiliation is resulting from an act of rape.
Posted by: Res ipsa | Feb 28, 2011 3:36:56 PM
Res ipsa: the answer to your question is that the law, in its infinite wisdom, considers photo-shopping pictures to create the appearance that a child has been raped to be as bad as actually raping a child.
Posted by: snapple | Feb 28, 2011 4:08:19 PM
I think the answer to why this is illegal, Res ipsa, is because it still "display[s] the face of a [real] child." Entirely computer produced images of such conduct that does not involve the likeness of an actual child is constitutionally protected. But as soon as the depiction involves a real child, a legislature can prohibit it.
Posted by: Chris | Feb 28, 2011 9:52:54 PM
Chris, why is it that the legislature can prohibit a free speech that is not harming anyone, not even by creating demand?
If the Supreme Court does not over turn this, I would be deeply disappointed of its role as defender of the constitution.
Posted by: EJ | Mar 1, 2011 1:54:56 AM
I agree with EJ. Moreover, the reasoning seems muddy and perhaps disingenuous.
The court conflates obvious 1st Amendment issue with the much tougher question of imposing criminal liability. In so many words, the court states "because we find that it is not protected speech, a sentencing enhancement is appropriate."
Well, OF COURSE it's not protected speech. Nothing could be more clear.
But is it CRIMINAL to play around with PhotoShop? That is the question. It would take some very creative and persuasive arguments in this opinion to convince me that it is. However, the court doesn't even bother to address that question, relying instead on a glib rhetorical construct implying that criminal liability naturally flows from the fact that this is not protected speech.
The constitutional interest in question is the liberty interest of the defendant, not his right to free speech. The opinion does not bother to address this. I too would assume that it will be overturned. This is the sort of bizarre departure from the plain meaning and purpose of a statute that will deeply trouble Scalia et al.
Posted by: James | Mar 1, 2011 3:05:15 AM
There were opportunities for naturalistic experiments, such as after a regime change. Multiple cross national studies show that porn reduces sexual child abuse in the physical world. The same applies to adult porn and rape statistics. It is the prohibition of such that maintains its high price, and profitability to horrid criminal syndicates, some of which certainly fund terrorism.
So the most powerful factor in the generation of real child sexual abuse by child porn? Prosecutors and feminist judges. Excuse me, vile feminist judges and their male running dogs.
This study is of the Czech republic, after the fall of Communism. It contains references to prior studies. Most of the anti literature listed is from feminist extremists, haters, like Andrea Dworkin. They are data and evidence free. As an aside, in an interview I saw, she believed marriage was rape, even if the female initiated sexual activity. This belief is from the disparate amount of political power of the two parties. Her stuff prevails in our culture, as the KKK prevailed 100 years ago. The lawyer ignores the scientific literate also reviewed, just as was done 100 years ago.
http://www.springerlink.com/content/v046j3g178147772/fulltext.pdf
Posted by: Supremacy Claus | Mar 1, 2011 3:28:31 AM
Chris--
I understand that distinction, and I think you're right as a constitutional law matter--but it still doesn't jibe with the purpose of anti-CP laws. The child is not being raped or molested, and thus will not suffer the irreparable harm associated with images of his/her rape being viewed by others. There might be a civil claim for using one's likeness for commercial benefit--but I don't see how that's criminal.
I think the problem is that CP laws have now gone far beyond their intended purpose--which is why two 15-year-olds sexting each other is met with CP prosecutions, even if the relationship itself is legal and the pictures are consensual. I guess my question is more of a rhetorical "WTF" variety than actual curiosity, based upon what I see as an overcriminalization of an activity because of its "icky perv" feel (apologies to Ginny).
Posted by: Res ipsa | Mar 1, 2011 9:04:07 AM
Hey, there is a guy who got arrested for child porn because of drawn pictures in a Japanes Manga that depicted characters that were supposed to be teenagers engaging in sex. Umm.. those are drawings, and if not for the storyline, they would just be characters with small bodies and big eyes like in every manga or anime.
Posted by: tbucket | Mar 1, 2011 2:53:54 PM
Chris:
Are you trying to justify your soul by being a member of the FBI, DHS, LE or NCMEC?
"The constitutional interest in question is the liberty interest of the defendant, not his right to free speech."
Please don't sell your whole life to rotten fruit, i.e., Congress and Oprah!
By their fruits, you shall know them!
Unfortunately, we may fall (like Rome) long before we know them.
Posted by: albeed | Mar 5, 2011 11:50:17 PM
