Nuance to Free Speech Coalition
John Rapanos and the Kitchen Sink Theory of federal jurisdiction

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

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 p*rnography.  Id. at *11-16. [Ed's note: I use * in place of some letters to keep creepos from finding my blog while looking for pictures of kids.]  Bach was convicted under 18 U.S.C. §2252A(a)(2), which makes it illegal to "knowingly receive[] ... any child p*rnography [in interstate commerce]."

In Bach the received a p*rnographic image (that was never proven to be of a minor) that had the head of a minor - identified as "AC" in the opinion - superimposed on the image "so that the resulting image appeared to be a nude picture of AC posing in the tree."  Id. at *3.  Bach challenged the conviction arguing that Ashcroft v. Free Speech Coalition required the government to prove that the pornographic image sans the superimposed head, was of a minor.  Otherwise, it was morphed child p*rnography and thus could not be criminalized unless first found to be obscene.

The panel, relying on Ferber's rather than Free Speech Coalition's reasoning, wrote that "[a]lthough there is no contention that the nude b*dy actually is that of AC or that he was involved in the production of the image, a lasting record has been created of AC, an identifiable min*r child, seemingly engaged in sexually explicit activity. He is thus victimized every time the picture is displayed."  Id. at *15-16.

Did the Eighth Circuit get this one right?  Let's begin.

Although non-obscene p*rnography is protected speech, California v. Miller, it is settled that the First Amendment does not protect child p*rnography.  New York v. Ferber.  There is an irrebuttable presumption that minors are injured when they engage in sexual acts with adults or with other children.  Thus, the First Amendment does not protect child p*rnography because the state's interest in protecting children always trumps any speech value that child pornography may have.

But Bach involved "morphed" child p*rnography.  Morphed p*rnography is created by taking innocent-looking photographs of children and making them appear that the children in the photograph are engaging in non-obscene conduct.  In FSC, the Court that this was protected speech.  In FSC, the Court struck down the CPPA on overbreadth grounds because it prohibited morphed and virtual pornography.  This prohibition was improper because such images did not fall under the foray of Ferber because no children were actually injured in the production of these images.  Justice Kennedy wrote in FSC: “In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production.”

It would seem then that Bach should not have been convicted, since the government did not prove that the naked image upon which Bach superimposed A.C.'s face was a minor. 

Unfortunately for Bach, instead of facially attacking the law, his lawyer brought an as-applied challenge and devoted only two pages in his brief to FSC.  This was a fatal mistake.  As the court properly noted:

Although there is no contention that the nude b*dy actually is that of AC or that he was involved in the production of the image, a lasting record has been created of AC, an identifiable min*r ch*ld, seemingly engaged in sexually explicit activity. He is thus victimized every time the picture is displayed.

Id. at *15-16.  Thus, unlike the facts in FSC, and like the facts in Ferber, here a min*r was injured.  Judge Healy noted that Bach's lawyer made a major mistake:

I concur in the majority’s well-reasoned opinion. I write separately only with respect to Bach’s conviction for receiving child p*rnography in violation of 18 U.S.C. § 2252A(a)(2). Bach contends that this conviction is constitutionally infirm because it rests on a definition of child pornography, contained in 18 U.S.C. § 2256(8)(C), which he claims violates the First Amendment. Had Bach challenged this statute on the ground that it was facially overbroad, as did the respondents in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 243 (2002), he may well have prevailed on his claim.

In my view, the reasoning behind the Supreme Court’s decision in Free Speech Coalition, which held subsections (B) and (D) of § 2256(8) unconstitutionally overbroad, applies with equal force to subsection (C). The record reveals, however, that Bach only challenged the statute as it was applied to him. See United States v. Stuckey, 255 F.3d 528, 530-31 (8th Cir. 2001) (noting the court of appeals generally does not consider issues or arguments that have not been raised or articulated on appeal). I agree with the majority that the statute survives scrutiny as applied, and therefore concur.

Id. at *20.

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