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Contributor, The Volokh Conspiracy

So the Supreme Court of the state of Washington held today in State v. Gray, by a 6-3 vote:

[The Supreme Court’s decision in New York v.] Ferber placed child pornography outside the protections of the First Amendment. However, [Gray] contends that Ashcroft v. Free Speech Coalition has since clarified that holding.

In Free Speech Coalition, the Supreme Court struck down a law that banned sexually explicit depictions of minors, as well as depictions that appeared to be minors. These included computer generated images and depictions of legal adults pretending to be minors. The Court recognized that the First Amendment “does not embrace certain categories of speech, including … pornography produced with real children.” However, the Court found the prohibition of images that appear to be, but are not actually, minors improper; any harm stemming from those false images “does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.”

Gray claims his case is similar. Because a fabricated computer image of a minor does not involve an exploited child, it falls within traditional First Amendment protections. Consequently Gray argues that just as no children were exploited in Free Speech Coalition, no child was exploited here and his speech is entitled to First Amendment protections. He claims any potential harm in his case is just as attenuated and vague as Free Speech Coalition. Because no harm was done, he should have the same right as any adult to take voluntary photographs of his own body. We do not find this argument persuasive.

We find that [the Washington ban on all distribution of sexual images of minors] is not overbroad. It regulates only sexually explicit images of actual children, which is speech outside the protections of the First Amendment. Because Gray transmitted such an image, his actions do not fall under First Amendment protection. We affirm the Court of Appeals.

The dissenting justices argued that the statute shouldn’t be read to apply here, because, “when the legislature enacts a statute designed for the protection of one class — here, children depicted in sexually explicit conduct — it shows the legislature’s intent to protect members of that class from criminal liability for their own depiction in such conduct.” The majority disagreed: That principle, the majority suggested, applies only to victims who are working together with (and presumably under the influence of) their victimizers, not to solo offenders such as this.

The case itself involved a 17-year-old sending “an unsolicited picture of his erect penis” to an apparently unwilling recipient, but the logic of the court’s reasoning applies even when the recipient is pleased to receive the photo. The court does say that, “because [Gray] was not a minor sending sexually explicit images to another consenting minor, we decline to analyze such a situation,” but I think that — given the logic of the majority opinion — the analysis would have to end up the same way; nothing in the majority’s reasoning turns on the presence of an unwilling recipient.

Thanks to Mark Leen for the pointer.