In 2011 and 2012, I blogged about an attorney who — acting as an expert witness — morphed a picture of a child’s head onto a photo of an adult’s body, creating what would have constituted child pornography had the entire photo been an image of a child. The lawyer got hit with a $300,000 civil fine as a result (likely far exceeding his expert witness fee), and is fortunate that the federal prosecutor’s office agreed to a diversion disposition rather than putting him at risk of a conviction. The Sixth Circuit allowed the civil suit to proceed against the lawyer.

Late last week (thanks to Jonathan Turley for blogging on the case), the Eighth Circuit affirmed the conviction (leading to a ten-year prison sentence) against a man who did the same thing, but sent the photos to the girl whose headshot he used for the morphed photos, whereas the lawyer in the Sixth Circuit case used the images in court as an expert witness. U.S. v. Anderson (No. 13-2337, 8th Cir., July 17, 2014).

Anderson gives heavy emphasis on protecting minors and too little credence to the First Amendment’s protection of free expression. Granted, Anderson’s behavior was reprehensible. However, at the end of the day, no minor — as opposed to an adult — ended up acting or posing in a manner that could be defined as child pornography. Anderson dismisses outright the appellant’s assertion that the bodies in the images clearly were those of adults. However, would the Eighth Circuit have reached the same result had Anderson posted to his website a picture of a Hustler centerfold with the face of a famous 17-year-old actress crudely pasted on the Hustler model’s body in a size disproportionately larger than the body image? Where is the line drawn?

Would Ashcroft v. FSC have been decided to the opposite had the justices known that computers one day could easily (as to still images) be used to morph images of children’s heads onto images of adults’ bodies? Will the day come when the same morphing can be easily done with moving images in video and film?

Anderson gives short shrift to Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), which, applying the First Amendment, bars a child pornography conviction (but does not automatically bar an obscenity conviction) for sexual images that look like minors but are actually of adults. If the Supreme Court takes up Anderson on appeal, Free Speech Coalition’s dissenters will be ready to pounce.