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."

NEXT: Nobel Prize-Winning Economist Vernon Smith on Experimental Economics, Adam Smith, The Housing Bubble, and His Journey Towards Libertarianism

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  1. the child-porn exception to the First Amendment

    Yep. Right there in my copy of the Constitution. Right after the commercial speech exception.

    1. Now, I know that the contrarians at Reason aren’t going to issue a report on the societal benefits of child-porn…Wait, this just in from Ron Bailey!

      Child-porn good for America, study finds.

    2. I’m a little confused and don’t have time to read everything, but I thought this was settled law (in the SCOTUS case that Jacob referenced).

      I’m not sure I have much of a problem with child porn prohibitions, given that the basis of such laws is the exploitation of minors. There was some concern about the simulated or, really more to the point, the marginal stuff incriminating regular old porn and having deeper First Amendment concerns, but the 2002 decision ended that.

      Something wrong with people who are into child porn, that’s for sure.

      1. It is settled.

        You just can’t point to any textual basis for it in the actual, you know, Constititon.

        1. It is right after the words “Congress shall make no law”. It’s just written really, really tiny.

          “Except if the Supreme Court agrees that it is OK”.

          1. Selective literalism FTL.

            Unless you think death threats are protected by the 1st amendment, that is.

            1. If they aren’t carried out, then they are nothing but hollow words.

              1. NAP: an ethical stance which asserts that “aggression” is inherently illegitimate. “Aggression” is defined as the “initiation” of physical force against persons or property, the threat of such, or fraud upon persons or their property.

                But The Constitution is not the NAP.

              2. ah, funhouse mirror libertarianism(tm) again, much like the argument that DUI shouldn’t be a crime UNLESS somebody gets hurt

                love it!

                1. Hey dunphy,

                  How’s that application to join LEAP going? After all as one of the only ‘serious’ libertarians on this site, and seeing as you claim to be opposed to the War on (Some) Drug( User)s and are constantly exhorting us to lobby to change laws (as part of your “if his cause be wrong, our obedience to the king wipes the crime of it out of us” shtick), surely you have the balls to walk the walk.

            2. Yes, I agree. We had a good number of exceptions when the Bill of Rights was written–perjury, defamation, obscenity, treason, etc. I’m definitely a proponent of extremely strong limits on government interference with speech rights, but the reality is that “Congress shall make no law” requires the thing at the end of the statement to be recognized as protected speech. There are, and have always been, exceptions.

              I also note that the fact that there are areas of speech that aren’t protected is why the slippery slope argument is so compelling when it comes to free speech.

    3. Here we go again.

      Do you think death threats and perjury should be protected by the first amendment?

    4. Child pornography by necessity involves an unable-to-consent party in the “speech”.

      Peeping tom laws don’t violate the First Amendment either, do they?

      1. What are your thoughts on this, Tulpa? (SFW)…..-in-prison

  2. Hooray for small victories.

  3. You got to admit, being able to differentiate between the possession of virtual, but not actual, child pornography and the other actual evil things this cocksucker did is a sign of an enlightened judicial body.

    1. That’s the highlight of the story. There are rare occurrences when I’m not embarrassed by the government in my state, but I’m sure something stupid will come out of Sacramento later today to make up for it.

  4. see told ya, ban all porn. ur fat wife should be all u desire

    1. This looks like OO. It’s definitely not MNG. Oh, wait…

  5. I seem to recall that FSC v Ashcroft asked about three specific situations. Young looking legal adults, drawings, and photoshops putting kids’ heads on adult bodies (which seems to be what this case was). They found the first two to be unconstitutional, but the third constitutional because it does involve an actual child…

  6. I’m curious to know if this guy still has physical custody or visitation rights to see the child.

    One some level, some nagging urge tells me that if he hasn’t actually abused her, then there’s not reason he shouldn’t.

    But on a more visceral level, I’m inclined to regard anyone sick enough to photoshop his kid’s face into porn and masturbate to it as someone whose access to the same kind outght to be seriously restricted. SUpervised birthday parties, at most.

    1. if he hasn’t actually abused her

      Did you miss the part about the coke-fueled photo sessions?

      1. It’s a gray area; a woman might get away with that; a man, on the other hand, would almost certainly find himself with supervised visitation only.

        1. You mean he had sex with his female teacher!?

          …. Nice….

          Is she hot? …. Nice….

      2. Ok. I’m assuming no then.

        Would be an interesting theoretical question if it was JUST the photoshopping and masturbation though.

  7. Print|Email
    California Court Says Child Porn Requires Real Children

    Uh oh… That would mean NEW labeling guidelines.

    “This child porn was made with certified real children.”

    1. “No real child was exploited in the making of this material”

  8. Dany in Game of Thrones is only 13 when she marries Drogo.

    Lots of nudity and sex.

    Why isn’t that considered a depiction of a sexual act with a minor?

    1. Because the actresss isn’t 13?

    2. She is 13 in the book. Do they ever say her age in the show? If not, then there’s no problem.

      1. That’s a reason for having the new labeling guidelines.

      2. One can deduce it.

        Robb Stark’s and Jon Snow’s age’s are told and they were born during the war that took down the Mad King. They are 14.

        Dany says she has never seen Westeros because she was born while her mother (Mad King’s wife) fled…so she must be younger then Snow and Stark.

        I also think they mention how long ago the war was. So her age can be deduced from that as well.

        1. Dude, the actress isn’t under age and I really don’t want to see FCC vs. George R Martin, unless there are swords and possibly drunk midgets.

          1. Hey man I have brought Game of Thrones into this thread.

            Don’t be hating on me.

            1. Don’t be hating on me.

              where do you think you are…not the internet?

          2. Swordplay in the lobby of the FCC. With and FCC champion. Sell tickets and broadcast a pay-per-view.

        2. I want to say that they said that the war was 17 years ago on the show. I could be wrong.

          1. You’re correct. GRR gave an interview where he said that they made everyone older, and fucked up the entire timeline, because he thought keeping the sex was that important.

            1. Probably after they cast the chick that plays Tyrion’s whore and found out she did hardcore porn.

            2. This timeline makes more sense, except for Joffrey only being twelve despite his parents being married 17 years.

              I found it hard to buy Robb Stark being 15 in the books, as well as Jon Snow. Robb beating Jaime Lannister on the battlefield? Jon becoming Lord Commander of the NW? At their ages it seemed like a big stretch

              1. Dude if you are going to give away spoilers at least make them true.

                For example:

                By the end of the second book Tyrion, Sansa, Jon Snow, and Dany are all dead and Kings Landing is a smoldering wreak being burned to the ground by Dragons. The Others have razed Winterfell and are heading south to the Riverrun.

                That is how you give away a spoiler.

          2. crap now i have to go and rewatch it.

            Why can’t the unsubstantiated claims that i pull out of my ass ever be right?

            1. as opposed to the substantiated claims you pull out of your ass?

      3. There are plenty of movies with adult actors and actresses portraying underage folks and show nudity and engaging in sexual activity.

        1. And the courts have been saying that a depiction of a minor (regardless of the age of the actress portraying it) having sex is illegal.

          I am only pointing out that a shit pot of things will be made illegal if the laws stand.

          1. which case is that?

            1. It didn’t have to be movies.

              Artists and comics got a lot of heat over it.

              Frank Thorne’s comic The Devil’s Angel was under fire for depicting a cherubic ‘dark angel’ that people claimed was child porn.

        2. There are plenty of movies with underage actresses nude.

          Blame it on Rio, for one.

          1. Lolita, the professional, more im sure

            1. but i don’t think any american versions had simulated sex with underage actresses.

            2. The Man in the Moon

              Reese Whitherspoon’s bare 15-year-old ass is seen as she runs along and jumps off of a dock.


              1. i wonder how high she was in that movie. She was a bit of teen coke fiend as I recall.

            3. The Professional had nude and/or sex scenes?

              1. I think so. I thought Natalie Portman stripped down at one point in the movie.

                1. Nope. She just gets down to a thin shirt and no bra. The script called for nudity and a sex scene with Leon, but Portman’s parents forced a re-write.

                  1. Its been a while since I saw it

              2. They had these really jarringly off-putting scene where she’s posing in different outfits putting on a show for Leon.

                I thought it messed up the tempo of the movie (and made me feel dirty).

                of course, this sort of thing crops up inadvertantly too. The ex-wife and I were watching a wiggles DVD with their version of Farmer Brown, and both of us looked at each other and said, this feels wrong somehow:

                I’m sure someone, somewhere is titilated by this video. It involves children (including the daughters of the Wiggles choreographer). Does that make it child porn?

                1. Leon: The Professional is well loved for its very sexy Natalie Portman and her relationship with a man, but there is no nudity.

                  However, there are plenty of films with underage nudity available, and simple nudity is not illegal for most people to possess.

                  Of course, if a person is suspected of having an attraction to children, then all bets are off, and one victim was prosecuted for owning a best-selling sex education book, while multiple victims have been convicted for possessing cartoons, non-sexual nude images, fantasies written in a diary, and even for possession of videos of fully clothed teenagers putting on a public performance.

                  In short, when it comes to thoughtcrime there are no limits.

          2. A lot of it is based on the highly subjective “prurient interest” standard. So if it’s “art” it’s OK.

            That’s why you can buy a DVD of a naked 12-year-old Brooke Shields in Pretty Baby on Amazon, but a porno made by Traci Lords when she was 17 years and 364 days old is illegal.

            1. The temperament of local prosecuters also plays a part (like most issues).

              Some would go for the big show-trial while others have better things to do.

        3. I think in the US they cut a scene in the “Professional” because it was too racy.

      4. She is 13 in the book.

        Also why isn’t the book considered a depiction of a sexual act with a minor?

        1. again, where’s the case law

          1. Fuck I don’t know maybe i mean laws.

            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.”

            Also i remember reason having other articles here on the subject.

            Furthermore quit razin me.

            I BROUGHT GAME OF THRONES INTO THIS Discussion!!

            Do i get no credit for good works?

            1. Back when the law was in effect, the movie industry was very aware of the law.

              Foreign films had to be closely monitored to be in compliance.

            2. you contribution has been noted and added to your small-l cred. Your monocle is only 5 credits away from order.

              1. Right on.

                How about the 2006 (note the date) Christopher Handley case in Iowa were he actually was convicted of child porn by possessing manga.

        2. Books were considered literature.

          People freak out when it’s actually in front of them and they don’t have to read big words.

          1. I like how the “American Tolken” has sex and religion in his books but the real Tolken hardly even has parents in it.

        3. iirc, the term “depiction” necessarily includes a visual component iow a picture etc. not words describing same, at least in the legal sense

          contrast “description” with “depiction”


  9. “Joseph Lowell Gerber”

    Can anyone provide definitive proof that joe from lowell actually lived in MA?

    1. Check to see if there were any city planners there by that name. Or was it lawyers?

    2. Nah. I checked his shit out one time. He was a former member of the city neighborhood planning committee tier of the city planning committee. So, more or less, correct. Can’t swear if the convertible he drove around in with a babe was real, but then, (lol!) a convertible! That’s some First Ass American Dream living right there!

      1. First Ass?

    3. I think his last name was Boyle.

      Joe Boyle.

  10. I walked in on my friend with his girlfriend when we were 16, and they may have been filming it. I WITNESSED THE PRODUCTION OF CHILD PORNOGRAPHY! CALL SWAT!

    1. SWAT’s busy just now beating…err, make that arresting soccer moms. so maybe some waterboarding & sodomy while waiting to get the ball rolling

      1. That is NOT OO!

        It does not have OO’s signature incoherent rambling.

        1. ha ha very cute ol mex i finshed 3ird in my HS”s speling be so u dont no wut your talkin abotu as usually

    2. Good Lord Brian! Is that you?! Boy was your face red.

  11. I find tofu-children just as satisfying as real children…

    1. Speaking of tofu, there is a restuarant in Minneapolis that has on its menu, Homemade Tofu, Smothered in Meat Sauce.

      1. tofu is actually edible when prepared in a dish with meat. it’s only reprehensible when it tries to BE meat.

  12. Don’t worry, having a naked picture of your infant baby playing in the sink is still considered child pornogrpahy. We’re still safe.

  13. Hmmm. Maybe if a half-decent man in Joe Gerber’s family, Uncle Dave say, just punched Joe in the face for acting way too creepy this wouldn’t have come up at all in the courts.

    But Uncle Dave would have gotten a criminal record for domestic violence and would had to pay his way through anger management classes, or go to jail and loose his job.

    The courts cannot solve every problem. This is one of them.

  14. based on sexual images of grown women into which he digitally inserted his 13-year-old daughter’s face

    Maybe not convicted of child porn but can we agree that someone needs to be the fucking shit out of this guy?

    1. beat, and I don’t mean beating off

  15. Garber?who also was convicted of annoying … a child

    I’m fucked. I pester the shit out of my nephew as often as possible.

    (And that’s NOT a euphemism!)

  16. “California Court Says Child Porn Requires Real Children”

    Accept no substitute.

  17. 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.”

    That crime has a much, much lighter punishment than producing child pornography does, though.

    1. Lesser crimes get lighter punishments, despite the wishes of some prosecutors.

    2. The punishment is the process. Jail time and fines are just bonuses for prosecutors to stick on their resumes. The only way to keep your life’s savings when accused of a crime like this is not to get sucked into the process.

  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…

    Okay, so he is a scumbag and a child abuser, but a not a child pornographer.

    Legislation by outrage is not rational. While I find pedophiles disgusting, I have a hard time getting ginned up over “crimes” which have no victims. In the case of virtual child porn/lolicon/whatever else I’m leaving out, there is none. Perverse and appalling as it is, whacking off to a picture of a fake minor victimizes as many people as whacking off to a picture of Gorilla Grodd.

  19. I just hope in the short time he has spent incarcerated, he had some jailhouse justice metted out to him. Plying your 13 year old daughter full of coke so she’ll pose in her underwear for you. That dude needs a bullit. All this lofty legal arguements are all fine and dandy but I have no love for these douchbags. Fuck them.

  20. I paid $32.67 for a XBOX 360 and my mom got a 17 inch Toshiba laptop for $94.83 being delivered to our house tomorrow by FedEX. I will never again pay expensive retail prices at stores. I even sold a 46 inch HDTV to my boss for $650 and it only cost me $52.78 to get. Here is the website we using to get all this stuff,

  21. It should be noted that California Law already specifically exempts virtual minors from any child porn prosecution in California Penal Code 311.11:

    “(d) This section does not apply to drawings, figurines, statues, or any film rated by the Motion Picture Association of America, nor does it apply to live or recorded telephone messages when transmitted, disseminated, or distributed as part of a commercial transaction.”

    And by implication, allowing ‘obscene’ materials for adults, since the penal code only criminalizes intentional distribution of legally obscene material (which is more than mere depictions) to minors other than by parents or guardian.

    and that the Federal Law USC 1466A, part 2, that was initially instated to outlaw various (virtual) sexual depictions of minors was struck down as unconstitutional by District Judge Gritzner. 1466A, part 1, was left intact because that relies on legally proving obscenity.

    However, like all obscenity cases after Miller/Ginsburg, nothing is actually banned (i.e. anyone possessing title X,Y,Z or possessing works showing A,B,C is now a criminal) but at the same time anyone can become vulnerable since it is always subjectively defined after the fact.

    The courts have struck down attempts to ban/criminalize specific speech that do not involve acts as unconstitutional BUT have always left an avenue for “communities” (in practice any prudish zealot) to pursue devastating charges on a case-by-case basis, by relying on absurd notion that obscenity is unprotected speech

    That’s why in all cases in the recent decades, the same material that sent someone to jail is still legally available!

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