Person prosecuted for possessing ‘child pornography’ — copies of nude photographs of children from National Geographic, a sociology textbook, and nudist magazines

July 10, 2014

Unconstitutional, says Massachusetts’ highest court in Commonwealth v. Rex (not this Commonwealth v. Rex): such photographs don’t involve “lewd exhibition” of the children’s bodies, and are thus not child pornography. Of course, some pictures in some magazines that might call themselves “nudist magazines” might well contain such lewd exhibition, but the court concluded that these pictures were not:

Based on our de novo review of the photocopies [i.e., an independent review, with no deference to the grand jury's determination], it is plainly apparent that their only notable feature is the nudity of the children. In none of the photocopies is the focal point of the visual depiction a child’s genitals, and the children are not shown in any unnatural poses. Rather, the children are portrayed either simply standing around or engaging in ordinary activities in unremarkable settings. The visibility of the children’s genitals is merely an inherent aspect of the fact that they are naked. There is nothing remotely sexual, either explicitly or implicitly, in any of the photocopies. The demeanor, facial expressions, and body language of the children suggest nothing inappropriate.

And this is so even though there was reason to think the defendant kept the photographs for sexual purposes. Though the defendant kept the copies “in an envelope inside his footlocker” and kept “hand-drawn pictures of children engaged in sexual acts” together with the copies, the court concluded that,

Whether the photocopies depict a ‘lewd exhibition’ … depends on what is visually portrayed in the pictures themselves, not on other ancillary evidence that may be suggestive of the defendant’s state of mind. The context for the defendant’s possession of the seven photocopies is irrelevant to the objective assessment of their lewdness.

The defendant is in prison (for various crimes, including rape of a child), and he might well have been administratively punished by the prison for such possession, or even criminally punished under some special statute barring possession of such material in a prison (if such a statute exists) — First Amendment protections are far weaker in prison than elsewhere. But the defendant was prosecuted under a general ban on possessing child pornography, which applies equally to everyone. If the government had prevailed, then possession of such material would have been a crime for everyone, not just prisoners.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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