Many will remember 2020 for the various panics it revived: America’s second greatest toilet paper shortage since the 1970s, its first great pandemic since 1918, and another financial crisis. The year also brought back another moral hysteria commonly visited in America’s past: child porn panic. Tech companies caught flack for announcing a surge in child pornography being traded on their platforms, while simultaneously planning to encrypt messages that would prevent detection of those very same materials in the name of increased security. Netflix was indicted for “promotion of lewd visual material depicting a child” in the controversial movie Cuties. Reports of online child pornography surged during the pandemic, as did incidents of child pornography-related “Zoom bombing.” OnlyFans suspended an influencer’s account for selling partially nude images of herself as a child, and Pornhub purged all unverified content in response to child exploitation concerns. These incidents demonstrate increased public awareness and concern for the exponential growth of child pornography materials online.
Increased worry around child pornography often comes with cries for redundant legislation to gap-fill what crusaders view as cracks in the law, allowing peddlers of “legal child erotica” to slip by unpunished. Lawmakers in Washington, for example, in an attempt to combat online child sexual exploitation, recently introduced a $5 billion bill that the New York Times describes as echoing a neglected 2008 law that failed to fulfill the same lofty goals. The 2008 PROTECT Our Children Act is one of many pieces of ineffective legislation passed in the last twenty-five years to combat child sexual exploitation online; the Child Pornography Protection Act of 1996 (parts of which were struck down in Ashcroft v. Free Speech Coalition), the PROTECT Act of 2003, and the 2008 law have not stymied the circulation of child pornography on the internet.
But is more legislation warranted? A look at the case law shows that very few types of child sex materials escape prosecution. Take, for example, another child pornography issue that continues to evolve: the legality of morphed child pornography.
Morphed child pornography is a form of digital child porn where “pornographers . . . alter innocent pictures of real children so that the children appear to be engaged in sexual activity.” Morphed images “do not necessarily harm a child in their creation.” The children depicted were often never photographed for pornographic purposes nor posed in a sexualized manner. Rather, the images doctored for the purpose of creating pornography are often “innocent and can be found all over the internet.” For example, in a recent opinion by the 5th Circuit, United States v. Mecham, the court upheld one man’s conviction for morphed child pornography possession for photoshopping his grandchildren’s faces onto pornographic images to make it appear that the children were having sex.
While the question of the legality of morphed child pornography has yet to reach the Supreme Court, most of the circuits that have commented on it state that morphed images, like traditional child pornography, do not enjoy First Amendment protections. In 2020, the Fifth Circuit joined the Second and Sixth in ruling that morphed child pornography is unprotected speech as in the Mecham case.
The Eighth Circuit stands alone in (minor, hair-splitting) dissent. In United States v. Anderson, the Eighth Circuit asserted that to be criminalized, morphed images must represent an underlying crime, such as child sex abuse. However, the court simultaneously upheld a conviction for morphed child pornography in the very same case. If morphed images implicate “a compelling government interest,” and “[t]here [are] no less restrictive means” for the government to protect the depicted children from exploitation, convictions may survive strict scrutiny under the First Amendment, even if they do not fall under the categorical ban on child pornography. So, while media outlets continue to decry a “circuit split,” it appears to be in name only, as all the circuits to have addressed the issue agree that the government can criminalize morphed images in order to protect children from harm.
Mecham was denied certiorari in June 2020, so it does not appear that the Supreme Court is in a rush to correct the decision. What does this mean for child pornography panic in 2021? Hopefully, politicians and media outlets realize that there is no dire need to gap-fill. Even where scholars assert that there must be legal child erotica, courts can and do punish those who produce and distribute harmful sexual images of children. The law is clear, and judges do not appear to be confused as to how to apply it: child pornography, images that depict children engaging in sexual conduct, is illegal. More legislation will merely contribute to an existing, redundant, and bloated statutory scheme that has so far failed to meaningfully hamper the flow of child pornography online.
Julia Zasso is a rising third-year law student at Northwestern Pritzker School of Law. In addition to being on Northwestern Law Review’s Notes team, she is a writer for Northwestern Follies and a member of OUTLaw. She enjoys learning and writing about the intersection of technology, the law, and vulnerable populations online.