Legal Commentary

Making Video of Yourself Supposedly Singing Sexually Themed Songs to Children (Who Actually Weren?t Present During the Singing) = Felony?

By Eugene Volokh

So the prosecutor seems to think in this case:

[Evan Daniel] Emory, 21, who authorities say ?victimized? an entire Ravenna first-grade classroom on Jan. 12, was arrested late Tuesday, charged with manufacturing child sexual abusive material, a 20-year felony....

Muskegon County Prosecutor Tony Tague said what Emory did by posting a YouTube video of him apparently singing sexual explicit lyrics to a Beechnau Elementary School classroom last month is ?disturbing? [and criminal]....

Here?s what happened, according to the principal:

[A] recent graduate (who contacted the teacher ahead of time) visited a first grade classroom and informed the teacher that he wanted to video himself singing to the class as a portion of his portfolio to help him gain admission to a Big Ten School of Education. He performed the song ?Lunch Lady Land? under the direct supervision of the teacher.... [A]t no time were inappropriate lyrics, actions or comments made during the presentation.

[Some days later,] this same recent Ravenna graduate ... [displayed a version of the video on YouTube]. [I]n this version, which was electronically altered and enhanced, the students are shown reacting to an extremely derogatory, and sexually explicit song that was not performed in front of our students or the teacher. Through technology and a great deal of editing, the perverted and extremely inappropriate presentation appears to be genuine and performed in front of the class.

It?s an interesting question whether it would be constitutional to bar the distribution without parental consent of material that contains children?s photographs; there are no Supreme Court cases so suggesting, and I don?t know of any lower court cases so suggesting, but I?ve heard people make such suggestions, and I suppose it?s possible that a court would accept some such theory (though there would be lots of difficulties with it, for instance with regard to news coverage of events where children are present, or coverage of trials of young criminals, and so on). I think it would also be constitutional to punish accessing schools ? or, more broadly, recording people ? on false pretenses, even if the false pretenses relate to your future plans of what you?ll do with the video recording.

But it?s hard for me to see how this can fit into the existing First Amendment caselaw related to ?child sexual abusive material? (chiefly child pornography) ? or for that matter into the Michigan statute. The original article reports that the defendant is being prosecuted under Mich. Penal Code § 750.145c, which in relevant part defines ?[c]hild sexually abusive material? as ?any depiction [or sound recording] ... which is of a child or appears to include a child engaging in? ?sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement [defined as the condition, real or simulated, of human male or female genitals in a state of real or simulated overt sexual stimulation or arousal], or erotic nudity.? ?Passive sexual involvement? in turn ?means an act, real or simulated, that exposes another person to or draws another person?s attention to an act of sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, sexual excitement, or erotic nudity because of viewing any of these acts or because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.?

Maybe I?m missing something, but I don?t think that material that ?appears to include? elementary school children listening to ?sexually explicit lyrics? qualifies. No sexual act by a child is being depicted (or even faked); no sexual stimulation or arousal of a child is depicted (or faked); no child is being depicted as engaging in ?passive sexual involvement,? which at least requires the real or faked viewing by a child of a sexual act, or proximity of a child to a sexual act. Even actually singing to children about sex doesn?t seem to me to qualify; fake singing doesn?t, either.

The defendant engaged in some pretty bad behavior here, and, as I said, it?s possible that the behavior may be constitutionally unprotected, or even potentially punishable under some state law (perhaps related to trespass by fraud or some such). But I don?t see how it?s punishable under the particular law that?s being discussed. Please let me know if there?s some statutory provision or other legal or factual twist that I?m missing here. Thanks to Prof. Brian Kalt for the pointer.

Full post as published by The Volokh Conspiracy on February 17, 2011 (boomark / email).