The NY Times reported (here) today on the 21 year-old Applebee's waiter/aspiring musician who has been charged with manufacturing and distributing child pornography. The offense? He posted a video of himself singing a song and later edited the video to make it look as if he had sung it in the presence of a group of elementary school students. He had, in fact, performed to this group of elementary school students, but the actual performance was an age-appropriate song.
[The accused] said the idea for the video arose out of planning for a Valentine’s Day variety show at a downtown club. He wrote the explicit song when he was 16, he said, and had played it in bars before. But for the variety show he wanted to pair it with “an inappropriate audience” as a comedy segment. He thought of using elderly people, he said, but decided instead on young children.
He has admitted that he deceived the teachers at Beechnau Elementary School, in the small farming community of Ravenna, about his intentions. Mr. Emory included a disclaimer with the video, saying that no children had actually been exposed to the sexual lyrics. He said that his friends — fans of Daniel Tosh and other edgy comedians on the Internet and cable television — all thought the video was hilarious when they saw it at the local nightclub or on YouTube. (It has since been removed.)
But the hilarity vanished when sheriff’s deputies showed up at Mr. Emory’s house and seized his computer and his iPhone.
Today I had a lively discussion with colleagues, including my friend Audrey Rogers, who has written at length about child pornography (see here and here, e.g.). Our group had trouble agreeing on whether the prosecutor could make a strong case that the accused had manufactured and distributed child pornography.
Here's a portion of the relevant state statute, M.C.L.A. 750.145c.:
A person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more than 7 years, or a fine of not more than $50,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the childsexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child.
(Emphasis added.) And what is "child sexually abusive material"?
“Child sexually abusive material” means any depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or printable medium containing such a photograph, picture, film, slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording.
A "listed sexual act" is defined as "sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity."
I haven't seen the video, so I can't quite wrap my head around how images of children listening to music — spliced into a song — meets the definition of "child sexually abusive material." That being said, as a parent, I would be furious if it were my child's image used in the video. I get that. Still, based on publicly available information, this looks to me like overreaching by the prosecutor.
What about the 3,000+ people who (according to the NYT) "liked" the video that the accused had posted on Facebook? Under a related part of the statute cited above, possession of "child sexually abusive material" is a crime. Will those 3,000+ people be charged with possession of child pornography?
A related issue. If the video qualifies as "child pornography" under the statute, is that statute constitutional in light of New York v. Ferber and Ashcroft v. Free Speech Coalition?
Unless the facts turn out to be other than what is publicly available, this is not even close and cannot even be close. It is another illustration of the moral panic that results in adults whenever "sex" and "children" appear in the same sentence–and all judgment and rational thought is too-often lost by those in charge of prosecutors' offices.
But you said you had a "lively discussion," which suggests that someone in the group may have believed there was something to this. What were their arguments in response?
This is an effort to dial down "child pornography" so that when somebody actually films a child being raped we all just yawn and look away.
"Unless the facts turn out to be other than what is publicly available"
Considering that the available facts appear to be a publicity drive initiated by the defendant, that might end up being the case. But, maybe it won't.
I'm interested in the observation that it would be infuriating to find that one's own child had been featured in the audience. I can understand that reaction, especially because the performer lied about his intentions in singing the song in the classroom setting, and I suspect that understandable anger may underlie the desire to hit the performer with a child-pornography arrest.
But perhaps this points to a middle ground: a right of privacy tort suit on behalf of the kids included in the video (which, I realize, depends on the contours of this cause of action in whatever jurisdiction is at issue). While I suspect the performer got permission from the class and/or kids to put them in his video, if he did it pursuant to a misrepresentation, that could obviate their consent. This approach also obviates labeling this guy a child pornographer, which is a really awful and stigmatizing accusation that should be spared unless accurate. It also more accurately calibrates the penalty (civil damages, injunctive relief) to the real harm at issue (tricking a classroom of kids into being part of a bawdy comedy video) instead of something different and much, much worse.
I agree with DF–that is the appropriate legal response (putting aside what one thinks of the merits of such a claim). But that a simple privacy tort becomes converted into child porn simply because of sexual content demonstrates the overreaction whenever children and sex are involved.