No Child Was Harmed in the Making of This Video: Morphed Child Pornography and the First Amendment
Date
2021
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Boston College Law Review
Abstract
On February 13, 2020, the Fifth Circuit Court of Appeals held, in
United States v. Mecham, that the First Amendment does not protect morphed
child pornography as a form of speech. The Fifth Circuit found that “morphed
child pornography” is like “real child pornography” because the content harms
the emotional health and reputation of a child. Thus, the Fifth Circuit held that
the First Amendment excludes both forms of child pornography from protection.
The Sixth and Second Circuits follow this rule, emphasizing that the government
has a strong imperative to intervene in situations that harm children. In contrast,
the Eighth Circuit has held that, under the Supreme Court’s recent opinion in
United States v. Stevens, the First Amendment protects morphed child pornography unless it depicts an underlying crime. Therefore, in the Eighth Circuit, the
First Amendment protects morphed child pornography that does not capture the
real sexual abuse of a child. The Supreme Court denied Mecham certiorari, and
the Court has not addressed the treatment of morphed child pornography under
the First Amendment substantively. This Comment argues that the Fifth Circuit
correctly decided Mecham by holding that the First Amendment does not protect
morphed child pornography. It also argues that the Eighth Circuit minority holding is erroneous because it fails to show judicial restraint and disregards policy.
Description
item.page.type
Article
item.page.format
Keywords
child pornography, first amendment, morphed images
Citation
Comerford, T. (2021). No Child Was Harmed in the Making of This Video: Morphed Child Pornography and the First Amendment. Boston College Law Review, 62(9), E-Supp.