Reversal of child pornography conviction in Florida

Dec 08, 2010 Reversal of child pornography conviction in Florida

Last Friday, based on statutory construction, the Florida Court of Appeal (2nd Dist.) reversed a child pornography conviction, because the images in question were not of real children but instead of adults with children’s faces cut and pasted on the images of adults’ bodies. Stelmack v. Florida, ___ Fla. App. (2nd Dist., Dec. 3, 2010). Stelmack concluded:

In conclusion, composite images must include actual lewd exhibition of the genitals "by a child" in order for their possession to be proscribed by section 827.071(5). Unseemly as the images in this case may be, their possession is not proscribed by section 827.071(5) because the only sexual conduct in the images is that of an adult. Thus, the trial court erred in denying Stelmack’s motion for judgment of acquittal. Because there are no applicable lesser-included offenses, we reverse and remand with directions for the trial court to discharge Stelmack.


Stelmack does not address the First Amendment, and seems to leave the door open for the Florida legislature to specifically make it illegal to copy and paste children’s faces to images of adults engaged in sexual conduct. I have not yet needed to examine how federal courts and other courts have dealt with such activities.

Congratulations to John Stelmack’s appellate team, all fellow members of the First Amendment Lawyers Association: Lawrence Walters and Derek Brett (both of whom I have previously collaborated with in First Amendment defense matters), and John Weston and Randy Garrou. Congratulations also to FALA members Dan Aaronson, Jamie Benjamin, and Gary Edinger, who served as three of the four lawyers for amicus Florida ACLU.

Thanks to the colleague who alerted me to this Stelmack case.

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