The US Supreme Court on Monday rejected the appeal of a Virginia man who claimed a First Amendment right to superimpose the faces of real children over those of adults engaged in sexually explicit activity.
The man, Christopher Allen, had asked the Supreme Court to overturn his conviction for producing child pornography on grounds that the images were protected by the First Amendment because they did not involve any actual sexual activity by minors.
Mr. Allen is serving a 17-year prison sentence following his conviction on five counts of producing child pornography.
The trial judge and appeals courts in Virginia rejected his appeal, noting that the faces in Allen’s child pornography all involved real children.
Allen ran a computer-based graphic design business from his home. He also cared for his niece at night and coached his stepdaughter’s soccer team in a league for girls under the age of 10.
According to a brief filed in the case, Allen used computer technology and his graphic design expertise to take the faces of his stepdaughter, his niece, and several girls on the soccer team from ordinary photos and “morphed” them with pictures of adults engaged in sexually explicit acts. The resulting photos are described as “extremely graphic.” The depicted girls were about seven years old, and their faces are readily identifiable, according to court briefs.
There is no evidence Allen distributed the images. Law enforcement officials, acting on a tip from his wife, discovered the images on computers in Allen’s home.
In his appeal, Allen argued that his activities fell within First Amendment protection under a 2002 decision by the Supreme Court, Ashcroft v. Free Speech Coalition.
In that case the high court struck down part of a federal law because it sought to ban the production and possession of virtual child pornography – computer-generated images that do not involve images of real children. The court said the law went too far.
Allen’s lawyer, James Connell of Fairfax, Va., argued that the Ashcroft case left a key question unanswered: “Whether the First Amendment protects images of sexual activity that depict minors, but do not involve any actual sexual activity by minors in the production process.”
The Virginia courts rejected that argument. Unlike virtual child pornography, Allen’s pornography involved the faces of real children, the judges said.
“The Constitution does not protect such images,” wrote Virginia Solicitor General Stephen McCullough in urging the high court to reject Allen’s appeal. “There is no constitutional right to possess sexually explicit morphed images of actual, identifiable children.”
The case is Christopher Allen v. Commonwealth of Virginia.
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