Is this child porn? Eh, why not.
Oh how many laws have been passed under the rubric of: “Won’t somebody please think of the children?!”
From drug laws to pornography, all the fun things get banned because of concern for children. Claim to be protecting children, and you can basically justify a cutout exemption from the First Amendment. The most recent cutout under this scheme is probably child pornography. As the Supreme Court held in US v. Williams, the harm to children from child porn is so severe that is justifies criminalizing any and all parts of the process involved in child porn, from solicitation to creation to delivery to consumption. There is no other sort of expressive act that is so regulated out of fear of harm, except maybe national security concerns (see: Wikileaks). In US v. Williams, the majority even recognized that the PROTECT Act was overbroad and would regulate protected speech. However, the overbreadth doctrine dictates that there must be substantial overbreadth for a statute to be constitutionally overbroad, which the court said didn’t exist in that case.
In the end, the law punishes anyone who:
advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct.
Which brings us to recent news in the world of aspiring YouTube comedians. Recently, Muskegon County prosecutor charged one Mr. Evan Emory with “manufacturing child sexually abusive material,” which carries a penalty of up to 20 years in prison and 25 years on the sex offender registry. His crime? Singing fun songs to elementary school kids, and then recutting it so it looked like he was singing them a song with graphic sexual lyrics.
Evan Emory making child porn
Is it illegal to recut a video to make it look like kids are singing along to sexual lyrics and then being titillated by that? Let’s look at the letter of the law. From what I can discern, Emory is being charged under Michigan Penal Code, XX, §750.145c(2): Child sexually abusive activity or material:
A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child.
That is a lot to swallow, but basically if someone makes or allows a kid to engage in sexually abusive activity for the purposes of making material from that, or somehow oversaw its creation, they go to jail for up to 20 years.
But what does “child sexually abusive material” mean? Luckily, the statute defines that in 750.145c(1)(l), as “means a child engaging in a listed sexual act.” And boy do they list the sexual acts, in 750.145c(1)(h): “sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity.”
Those are pretty broad terms. What do they mean? Well the statute describes those too.
(f) “Erotic fondling” means touching a person’s clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breasts, or if the person is a child, the developing or undeveloped breast area, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved. Erotic fondling does not include physical contact, even if affectionate, that is not for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.
(g) “Erotic nudity” means the lascivious exhibition of the genital, pubic, or rectal area of any person. As used in this subdivision, “lascivious” means wanton, lewd, and lustful and tending to produce voluptuous or lewd emotions.
(i) “Masturbation” means the real or simulated touching, rubbing, or otherwise stimulating of a person’s own clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breasts, or if the person is a child, the developing or undeveloped breast area, either by manual manipulation or self-induced or with an artificial instrument, for the purpose of real or simulated overt sexual gratification or arousal of the person.
(j) “Passive sexual involvement” 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.
(o) “Sexual excitement” means the condition, real or simulated, of human male or female genitals in a state of real or simulated overt sexual stimulation or arousal.
(p) “Sexual intercourse” means intercourse, real or simulated, whether genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between a human and an animal, or with an artificial genital.
(n) “Sadomasochistic abuse” means either of the following:
(i) Flagellation or torture, real or simulated, for the purpose of real or simulated sexual stimulation or gratification, by or upon a person.
(ii) The condition, real or simulated, of being fettered, bound, or otherwise physically restrained for sexual stimulation or gratification of a person.
So do any of these describe what Emory did? Well, first let’s address exactly what happened. There doesn’t seem to be any nudity or actual sex in the video. It was apparently clean enough for YouTube to keep up until Emory himself removed it. No children were directly harmed, or made to listen to the lyrics. However, the lyrics themselves are certainly dirty.
“See how long it takes to make your panties mine”
(wide shot of the children)
“I’ll add some foreplay in just to make it fun”
(close up of girl laughing)
“I want you to suck on my testes until I spurt in your face”
(close up of girl covering her mouth)
“I’ll lick on your chewie”
(close up of two girls covering their mouths)
“I want to stick my index finger in your anus”
(close up of boy making a shocked face)
“I’ll be the bus riding your ass up and down my town”
(close up of boy with grossed-out look on his face)
“I’m gonna use my sausage to make fettucine, then for dessert have a Harry Houdini”
(close up of girl laughing and rocking)(Link)
Furthermore, according to another description, he also mimed getting off in front of them. Then again, I haven’t seen the video, so I’m relying on other peoples’ descriptions. But taking these at face value, do they fall under the law? I can’t find any cases that analyze the meaning of the descriptions, so this analysis will have to go on the text itself.
He didn’t touch any of the kids, real or simulated, so it wasn’t erotic fondling. There was no nudity, so it wasn’t erotic nudity. There was no sadomasochistic abuse either, at least from the descriptions. There is not sex, real or simulated, so sexual intercourse doesn’t seem to count. However, the law’s description of sexual intercourse does include “oral-genital” and “an artificial genital,” so it is possible that Emory miming a blowjob or such could fall under this description. Sexual excitement may fit here, but the language in the law focuses on the state of the genitals themselves, and Emory doesn’t seem to actually sport a boner, real or simulated, at least according to the descriptions of the video. Masturbation does include real or simulated masturbating, so his faked self-enjoyment, if that was in the video, could fall under that section. However, it wasn’t forcing masturbation upon the kids, but merely himself. Rather, passive sexual involvement seems more applicable.
“[A]n act, real or simulated, that exposes another person to or draws another person’s attention to an act of […] masturbation, […] 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.”
This may be where Emory gets caught. His video did, according to some descriptions, simulate the exposure of the children to an act of masturbation. If these descriptions of the video are correct, then Emory may be guilty under 750.145c(1)(j).
However, the key point is that children were not directly involved in the end result. A good metaphor would be CGI child pornography. In Ashcroft v. Free Speech Coalition, the Supreme Court distinguished between CGI child porn that used actual children to create it and CGI porn that did not use actual children. Indeed, pure CGI porn records no crime and creates no victim. And while Congress argued that pure CGI child porn still encourages acts that harms children, the court held that was not enough to past First Amendment scrutiny:
The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in question. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.
However, CGI porn that originates from an actual child creates a visual record that can embarrass or harm the child in the long run. And if the people and parents are pissed about anything in this whole scenario, it is that their children were involved and clearly identifiable in Emory’s video:
“One visibly angry man expressed his displeasure with Muskegon County 60th District Court Visiting Judge Robert A. Benson’s decision to allow Emory to go free on bond.
“He got our kid on video!,” one angry Beechnau father shouted.
Another upset father, Charles Willick, of 1100 N. Ravenna, told reporters that “it’s ridiculous” what Emory did with the video.
“I’m disgusted by it,” Willick said. “It was totally uncalled for.”” (Link)
“I was very upset that my child’s innocence was exploited on TV and made fun of,” Cox said, waiting outside a Muskegon County 60th District Court room for the arraignment of Evan Daniel Emory. (Link)
If the parents seem to be angry about anything, it is what the court identified as the difference between the two categories of CGI porn: one involves actual children and can affect them in the long run, and the other does not. The statute itself makes this distinction, recognizing that the porn involved must not use part of an actual person. If a child is actually involved, then the end result cannot have redeeming value.
(a) “Appears to include a child” means that the depiction appears to include, or conveys the impression that it includes, a person who is less than 18 years of age, and the depiction meets either of the following conditions:
(i) It was created using a depiction of any part of an actual person under the age of 18.
(ii) It was not created using a depiction of any part of an actual person under the age of 18, but all of the following apply to that depiction:
(A) The average individual, applying contemporary community standards, would find the depiction, taken as a whole, appeals to the prurient interest.
- The reasonable person would find the depiction, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(C) The depiction depicts or describes a listed sexual act in a patently offensive way.
Emory’s video was created using a depiction of a part of an actual person under the age of 18. It was a mere trick of visual editing, but so is CGI child porn that incorporates a part of an actual person, and that can be banned. Even if the work has some redeeming value and doesn’t appeal to a purely prurient interest, if it includes part of an actual person, it is illegal under this state statute.
Emory has indicated that he just wants to settle so he doesn’t risk going to jail or being placed on a sex offender list. However, it would be interesting to see this case be argued. Sure, it may have been a bit of a dick move to make the video without school or kids permission, However, he didn’t pander it as a porn video, but as a joke video. There is no actual porn in it. The children are not exposed. No one actually does anything actually sexual or intended to be actually sexual. And while child pornography may be universally abhorrent on its face, O’Connor’s concurrence in New York v. Ferber states that porn is not always valueless and thus not always unprotected by the First Amendment.
On the other hand, perhaps parents should be allowed to prevent their children from being featured in videos, especially dirty joke videos, without their consent.
This whole case really raises the question of “What is child porn?” So rather than ramble more about it here, I’m going to write about it for my First Amendment Theory class. Hopefully in a few months I will post a much better analysis about this whole thing.
But for those who like to make dirty jokes on the Internet, it is all a somewhat scary prospect.
[Edit: Under the plea deal, Emory will serve 60 days in jail, two years of probation and 200 hours of community service. He will not have to register as a sex offender.]