California Court Says Child Porn Requires Real Children

As I noted in connection with last month's yearbook panic at Big Bear High School, an image can count as child pornography under California law even if it does not record an actual sex act. But according to a recent ruling by a state appeals court, it has to involve an actual child (defined as anyone younger than 18). At issue was the 2008 conviction of Joseph Lowell Gerber of Milpitas, California, for possessing child pornography, based on sexual images of grown women into which he digitally inserted his 13-year-old daughter's face. It gets worse. Garber—who also was convicted of annoying or molesting a child, furnishing marijuana to a minor under 14 years of age, and furnishing a controlled substance to a minor—plied his daughter with cocaine so she would pose for photos in her underwear. According to the court's decision (PDF), he "said he would masturbate to the pictures and admitted having 'sick thoughts' about his daughter." Reprehensible as his conduct was, however, the Court of Appeal for the 6th Appellate District concluded that Garber was not guilty of possessing child pornography because none of the images showed "a person under the age of 18 years personally engaging in or simulating sexual conduct," as required by state law.

Indeed, a definition of child pornography broad enough to encompass Garber's digitally altered photos would run afoul of the U.S. Supreme Court's 2002 ruling in Ashcroft v. Free Speech Coalition, which overturned a law that "extend[ed] the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children." In that case, the Court said the child-porn exception to the First Amendment covers only material featuring actual minors, not "speech that records no crime and creates no victims by its production." The California appeals court cited that decision as another reason, in addition to the law's text and history, to read the state's definition of child porn narrowly. "Although we may find such altered images morally repugnant," it said, "we conclude that mere possession of them remains protected by the First Amendment to the United States Constitution."

Federal prosecutors still can charge people for possessing pornography (including cartoons) that does not include real children, but they have to argue that the material is legally obscene—specifically an "obscene visual representations of the sexual abuse of children." Furthermore, the ban on possession (as opposed to production or distribution) of such material is constitutionally vulnerable, since the Supreme Court has said the First Amendment precludes bans on mere possession of obscenity (as opposed to child pornography).

I discuss child pornography laws in my July feature story on "Perverted Justice."