Arming Justice
Virtual Porn, Morphed Porn, Free Speech Coaltion, and U.S. v. Bach

Nuance to Free Speech Coalition

In United States v. Bach, No. 04-1211 (8th Cir. Mar. 14, 2005) a unanimous three-judge panel rejected Bach's First Amendment challenge to his conviction for possessing morphed child pornography.  Id. at *11-16.  In Free Speech Coalition, the Supreme Court held that the First Amendment prohibited prohibitions against virtual child pornography and "morphed" child pornography.  Morphed child pornography is created by taking innocent-looking pictures of children and making them appear pornographic.

In Bach, the Eighth Circuit held that, as in New York v. Ferber, and "[u]nlike the virtual pornography protected by the Supreme Court in Free Speech Coalition, the picture with AC's face implicates the interests of a real child and does record a crime." Bach at *15.  Further:

The picture depicts a young nude boy who is grinning and sitting in a tree in a lascivious pose with a full erection, his legs spread, and his pelvis tilted upward. The jury could find from looking at the picture that it is an image of an identifiable minor, and that the interests of a real child were implicated by being posed in such a way. This is not the typical morphing case in which an innocent picture of a child has been altered to appear that the child is engaging in sexually explicit conduct, for the lasciviously posed body is that of a child. See S. Rep. No. 108-002, at n.2 (2003) ("[T]he morphing provision is explicitly aimed at the creation of a sexually explicit image using an innocent image of a child.").

Bach at *16.  The court treated Bach's challenge as an as-applied one:

Although there may well be instances in which the application of § 2256(8)(C) violates the First Amendment, this is not such a case. The interests of real children are implicated in the image received by Bach showing a boy with the identifiable face of AC in a lascivious pose. This image involves the type of harm which can constitutionally be prosecuted under Free Speech Coalition and Ferber.

Id.  I'm not sure that the panel was correct, but I won't have the time to address these issues until later.  In the meantime, please feel free to post a comment.