Constitutional Law

2nd Circuit upholds conviction in virtual child-porn case

By By The Associated Press

ALBANY, N.Y. ? A federal appeals court yesterday upheld the child-pornography conviction of a New York man who superimposed the faces of teenage girls onto sexually explicit photographs of nude adults in his computer.

The 2nd U.S. Circuit Court of Appeals panel said in U.S. v. Hotaling that John C. Hotaling's digital alterations are not expressive free speech protected under the First Amendment. The 50-year-old argued that his fantasies didn't actually hurt or exploit any children. Hotaling is in prison.

While there was no evidence Hotaling distributed the images, the unanimous three-judge panel said the pictures showed the faces of six identifiable girls, who were "at risk" of damage to their reputations and psychological harm from knowing their images were exploited by a trusted adult. The panel cited evidence that the images had been formatted for possible Internet distribution, and that child porn now is circulated online primarily from one trafficker directly to another.

Federal public defender Gene Primomo said he was "strongly considering" an appeal, requesting a hearing before the full 2nd Circuit. "I'm sure the client wants to do it."

"They found an exception to the First Amendment based on something that he could have done with the pictures. He didn't do that," Primomo said. "We find all the time when you're dealing with child pornography that judicial gymnastics are exercised to try to determine these kind of things."

"I think it's a Supreme Court issue," he said. "I don't see how it's not."

In 2002, the U.S. Supreme Court ruled in Ashcroft v. Free Speech Coalition that "virtual" child pornography, computer-generated images that did not depict actual minors, was protected under the First Amendment because it did not harm any children through its production and continued existence.

Congress subsequently changed the law to prohibit sexually explicit computer-generated images or other depictions of any "identifiable minor," including one whose image was used in creating, adapting or modifying a depiction. In 2005, the 8th Circuit ruled in another child-pornography case that imposing the face of one minor on the body of another in an explicit pose was not protected speech.

The 2nd Circuit panel also rejected Hotaling's challenge that the statute as applied to him was overly broad and vague. They upheld his 78-month sentence for a single count of possessing child pornography, including an increase for an image showing "sadistic conduct" of one girl handcuffed and wearing a dog collar.

"I can see people saying, 'Why would the government go after this?'" said Assistant U.S. Attorney Thomas Spina. "But there's more to the story."

Hotaling was initially the subject of a state police investigation that he sent sexually suggestive Internet messages to a teenage girl. A search warrant was executed at his Sharon Springs home in 2005. His computer was seized, and it showed the altered images with the faces of underage girls from pictures taken with his digital camera, according to the original criminal complaint.

Full post as published by First Amendment Center on February 28, 2011 (boomark / email).