A recent federal appeals decision could greatly increase the liability associated with publishing media depicting youthful looking individuals. Here’s the story: In 2009 Jack Furman Dean Jr. was sentenced to 30 years imprisonment for violating 18 U.S.C. § 1466A(a)(2), which prohibits certain types of child pornography. U.S. vs. Dean, 635 F.3d 1200 (11th Cir. 2011). After the denial of his request for a new trial, Dean appealed to the 11th Circuit, challenging the constitutionality of § 1466A(a)(2) on 1st Amendment grounds. The statute at issue prohibits, among other things, the distribution, receipt or possession of:
- (a) [A] visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that ?
- (2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and,
- (b) lacks serious literary, artistic, political, or scientific value.
Unfortunately for the 1st Amendment, and for Mr. Dean, the underlying facts of this case are disturbing. The defendant was convicted of viciously, sexually abusing his stepdaughter from the ages of 11-27, and recording 58 of these encounters when she was a minor. After his conviction, Dean filed a motion for new trial, in which he raised (for the first time) the claim that the statute was overbroad in violation of the 1st Amendment. Striking down the statute on constitutional grounds would have vacated the conviction, and bought Dean his freedom. The motion was denied, and in March 2011, the 11th Circuit upheld the statute as facially valid, essentially acknowledging that while § 1466A may infringe on protected speech, the “narrow window” of the law’s encroached speech is not substantial enough to warrant invalidating the law.
Even if one operates in full compliance with 2257, maintaining all required age records, federal child pornography laws could still be applied if the site uses the wrong terminology in its promotional materials or if its models simply “appear to be” underage — even if they’re adults.
The rest of the world undoubtedly sees the outcome of Dean as a well deserved come-uppance for a convicted child abuser. But what does this case mean for the adult industry? Aside from the general observation that tough cases tend to make bad law, this decision is capable of having a colossally detrimental effect on vast amounts of adult web content. Specifically, almost any teen site on the web currently runs the risk of being categorized as child pornography under this statute. Notably absent from the statute and resulting case law is a requirement that the prohibited material depict an actual child engaged in sexual activity. A brief review of the recent developments in the law surrounding child pornography is helpful in understanding the impact of this decision.
Ashcroft vs. Free Speech Coalition, 535 U.S. 234 (2002) was the government’s first major attempt to muddy the definition of “child pornography” in the attempt to import the concept to “pretend” children. In that case, the Free Speech Coalition challenged the Child Pornography Prevention Act of 1996 (CPPA), arguing that it was unconstitutionally overbroad as it prohibited images that “appear to be” minors engaged in sexual activity and speech that “conveys the impression” of images depicting minors engaged in such activity. In its 6-3 decision agreeing with the FSC, the Supreme Court determined that child pornography can only be criminalized if its creation involves the recording of sexual abuse of actual children. Therefore, if the content is generated without any real children taking part in its creation, the resulting material is 1st Amendment protected speech.
Shortly after the Ashcroft decision, the legislature responded to the downfall of the CPPA by adopting the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003. Enacted to outlaw sexually explicit images of children, the Act, among other things, prohibits illustrations portraying real and simulated child pornography, which includes computer-generated “virtual child pornography” along with depictions of adults that appear to be underage. Unlike the language in the CPPA, in order to violate the PROTECT Act Congress added a requirement that the erotic images in question meet one prong of the Miller obscenity test as well. Miller vs. California, 413 US 15 (1973). As noted above, the material must lack “serious value” in order to violate the statute. However, the other two prongs of Miller, requiring that the material be patently offensive, and appeal to the prurient interest, are lacking in the statute. However in Ashcroft, the court reaffirmed that all three prongs of Miller are necessary before material may be declared obscene. More about that later.
The PROTECT Act also added a provision to 18 U.S.C. § 2252A(a)(3)(B), criminalizing the acts of anyone who knowingly “advertises, promotes, presents, distributes, or solicits […] an obscene visual depiction of a minor engaging in sexually explicit conduct; or a visual depiction of an actual minor engaging in sexually explicit conduct.” This “pandering and solicitation” provision was challenged in U.S. vs. Williams, 553 U.S. 285 (2008), where the defense took a page from the Ashcroft book, arguing that the PROTECT Act was unconstitutionally overbroad and vague. The Supreme Court, in a somewhat confused and splintered ruling, concluded that because the law distinguishes between an obscene depiction of any minor and mere depiction of an actual minor, this negates any issue of overbreadth. The court upheld the statute even though it could theoretically be applied in situations where the material advertised or promoted as child pornography did not depict actual children. Justice Scalia explained that the relevant consideration is what is in the mind of the “panderer:” “A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children.” Id at 303. That was the first chink in the armor that Ashcroft provided when it ruled that the material must involve actual children.
Although Williams attempted to interpret the statute in a constitutional manner, and consistent with Ashcroft, scores of critics still saw one too many similarities between verbiage of § 2252A and that which was struck down in Ashcroft. Both the adult and main-stream entertainment industries recognized that regardless of the actual ages of the participants, if the material is “presented” or “advertised” in such a manner that the viewer believes it may involve minors engaging in sex, the slippery slope generated by Williams could affect legal content ranging from adult actors who “appear” under 18, all the way to award winning cinema like “American Beauty.”
That brings us back to the Dean decision, which addressed the non-pandering provisions of Section 1466(A)(2). As noted, the 11th Circuit in Dean upheld the facial validity of the statute, even though it criminalizes material that is not obscene, and does not involve actual minors engaged in sex. The failure to require material to meet all three prongs of the Miller test, unless it involves actual minors, should be the death knell for this statute, based on legal precedent. While some may hope that this decision is appealed to the Supreme Court, given the conservative majority of sitting justices, forcing a decision from the court under these particular facts, may make the Dean aftermath even worse. As lawyers often say, “hard cases make bad law.” Consequently, there is a substantial likelihood that the high court could have a difficult time ignoring the disturbing facts of this case, even if it were otherwise inclined to invalidate the statute on 1st Amendment grounds.
Aside from the previously mentioned example of teen sites, § 1466A also potentially applies to satirical cartoon websites and so-called “morphed” adult content. Adult cartoon and hentai sites often utilize minor cartoon characters engaging in sexual acts —so even though the cartoon in no way involves an actual minor, and even if the material is not obscene, it may be criminalized under the statute. Similarly, the material created via morphing, a tool used to digitally alter the bodies if adults to display the faces of minors, would undoubtedly be encompassed by § 1466A as well. Thus far, the state and federal courts have been divided on the constitutionality of morphing statutes, but the Dean decision provides ammunition for the government when defending the morphing laws, as well.
Despite clashing child pornography decisions throughout the country, it is the recent Dean case that may cause operators of user-generated content and teen sites to worry, and rightfully so.
Even if one operates in full compliance with 2257, maintaining all required age records, federal child pornography laws could still be applied if the site uses the wrong terminology in its promotional materials or if its models simply “appear to be” underage — even if they’re adults. The operators would be forced to defend on the basis that their sites have “serious value” under § 1466A. Given the lack of thematic or dramatic content included in many modern adult websites, it is a safe bet that most website operators would not want to stake years of potential incarceration on this defense. A specific example of a film that would likely have sufficient “serious value” was provided by the Dean defense; the film version of the novel “Lolita,” “in which scenes of a minor engaging in explicit sexual conduct were produced using youthful adult actors or virtual images,” as opposed to actual children. While this film may be exempt from the purview of the statute given its literary value, webmasters would be forced to employ the costly and daunting task of comparing their website to a Hollywood production like “Lolita,” in order to assert similar defenses based on “serious value.”
User-generated content sites could be in bigger trouble, as many maintain no 2257 records — instead choosing to operate under various ‘exemptions’ located in the recordskeeping statute. Even if the exemptions apply, the lack of records means the operator cannot disprove a prosecutor’s contention that a given image depicts a minor. Possession of valid age-verification records may help in proving that the operator had no criminal intent in violating the law, but for those without any backup documents, the risks remain high.
The government would merely need to seek the testimony of an ‘expert’ witness age-guesser, such as a pediatrician, who would offer an opinion as to the age (or apparent age) of a model under the “Tanner Scale” developed for such purposes. If the website operator had nothing to rebut this conclusion (such as a governmentissued picture ID card) the consequences could be devastating, both personally and professionally.
Given the high demand for youthful-looking models in the adult industry, the Dean case epitomizes the term “butterfly effect” — although it received minimal attention and only directly affected a convicted child molester, this decision promises to have a significant effect on vast amounts of erotic content for quite some time.
Lawrence G. Walters heads up Walters Law Group, a law firm which represents clients involved in all facets of the adult industry.
All statements made in the above article are intended for general informational purposes only and should not be considered legal advice. Please consult your own attorney on specific legal matters.
You can reach Lawrence Walters at larry@firstamendment.com. More information about Walters Law Group can be found at www.FirstAmendment.com.
