No Protection Found for Sex Photos Altered to Include Minors
Mark Hamblett
New York Law Journal
Sexually explicit photos of adults that have been digitally altered to display the faces of children are not protected expressive speech under the First Amendment, the U.S. Court of Appeals for the Second Circuit has ruled.
Defendant John C. Hotaling argued that his "morphing" of photos harmed no one and was meant solely to "record his mental fantasies." He challenged his conviction on a single count of possession of child pornography by claiming the statute as applied was unconstitutionally vague and overbroad.
But the circuit, in United States v. Hotaling, 09-3935-cr, refused to accept his contention that the interests of actual minors were not implicated by the combining of photos and it upheld his conviction by guilty plea.
Judges Jon O. Newman and Peter W. Hall and, sitting by designation, Judge Jane A. Restani of the U.S. Court for International Trade decided the appeal after hearing oral arguments on Sept. 20, 2010. Judge Restani wrote for the panel.
Mr. Hotaling was indicted in the Northern District in 2007 and, subject to the right to appeal, admitted in his guilty plea that he created and possessed six photos in which the heads of underage girls had been "cut" from nonpornographic photos and superimposed over the heads of images of nude and partially nude adult women engaged in sexually explicit conduct.
One photo had Mr. Hotaling's face pasted onto that of a man engaged in sexual intercourse with a nude female who bore the face and neck of one girl. Another had been altered to make it appear that one of the minor females was partially nude, handcuffed, shackled, wearing a collar and leash and tied to a dresser.
Mr. Hotaling obtained one girl's image from a computer he had been repairing for her family and the other five were images from photos taken by his own daughter and her friends. Some of the photos were in indexed folders that could be used to create a website and all were encoded in HTML and titled "[Jane Doe] Upstate NY's Hottest Teen."
Northern District Judge Norman Mordue rejected Mr. Hotaling's claim that the statute, 18 U.S.C. §2256(8)(C), was unconstitutionally overbroad and vague as applied.
He sentenced Mr. Hotaling to 61/2 years in prison.
Mr. Hotaling continued to press his argument at the Second Circuit, where he said his case was distinguishable on the facts from the Eighth Circuit case of United States v. Bach, 400 F.3d 622 (2005).
The defendant in Bach had morphed the face of a known minor onto the sexually posed body of another minor. The Eighth Circuit held that the "interests of real children are implicated in the image received by Bach showing a boy with the identifiable face of [a minor] in a lascivious pose."
In Mr. Hotaling's case, Judge Restani said the panel agreed with the Eighth Circuit that interests of "actual minors are implicated" by morphing.
"In this case, even though the bodies in the images belonged to adult females, they had been digitally altered such that the only recognizable persons were the minors," Judge Restani said. "Furthermore, the actual names of the minors were added to many of the photographs, making it easier to identify them and bolstering the connection between the actual minor and the sexually explicit conduct."
Here, she said, "we have six identifiable minor females who were at risk of reputational harm and suffered the psychological harm of knowing that their images were exploited and prepared for distribution by a trusted adult."
Mr. Hotaling said his case also differed from Bach because the defendant in that case received his morphed photos over the Internet.
But Judge Restani said the "images fit clearly within the bounds" of New York v. Ferber, 458 U.S. 747 (1982), where the U.S. Supreme Court said that the distribution of child pornography was "intrinsically related" to the sexual abuse of children.
Judge Restani said that "the Supreme Court has made it clear the harm begins when the images are created," and the circuit was "especially concerned" with the "formatting and preparation of these sexually explicit images" with a URL and encoded files in HTML.
"These are not mere records of the defendant's fantasies, but child pornography that implicates actual minors and is primed for entry into the distribution chain," she said.
Assistant U.S. Attorney Nathanial J. Dorfman argued for the government.
Assistant Federal Public Defender Gene V. Primomo, who argued for Mr. Hotaling, said he is weighing whether to seek a rehearing by the entire Second Circuit or seek relief at the U.S. Supreme Court.
"This is an issue of first impression, in any circuit, with these particular facts and whether or not this is child pornography," Mr. Primomo said. While the judges analyzed the harm to children, there was "no pornography in the first place. They were kind of extrapolating that he was 'going to' or 'intending to.' But he never distributed any of it. Ever."
@|Mark Hamblett can be contacted at mhamblett@alm.com.
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