No Child Was Harmed in the Making of This Video: Morphed Child Pornography and the First Amendment

Abstract

On February 13, 2020, the Fifth Circuit Court of Appeals held, in United States v. Mecham, that the First Amendment does not protect morphed child pornography as a form of speech. The Fifth Circuit found that “morphed child pornography” is like “real child pornography” because the content harms the emotional health and reputation of a child. Thus, the Fifth Circuit held that the First Amendment excludes both forms of child pornography from protection. The Sixth and Second Circuits follow this rule, emphasizing that the government has a strong imperative to intervene in situations that harm children. In contrast, the Eighth Circuit has held that, under the Supreme Court’s recent opinion in United States v. Stevens, the First Amendment protects morphed child pornography unless it depicts an underlying crime. Therefore, in the Eighth Circuit, the First Amendment protects morphed child pornography that does not capture the real sexual abuse of a child. The Supreme Court denied Mecham certiorari, and the Court has not addressed the treatment of morphed child pornography under the First Amendment substantively. This Comment argues that the Fifth Circuit correctly decided Mecham by holding that the First Amendment does not protect morphed child pornography. It also argues that the Eighth Circuit minority holding is erroneous because it fails to show judicial restraint and disregards policy.