Did Perez Hilton violate federal child porn laws?

Perez Hilton is in a little hot water today — it seems that he posted a photograph of Miley Cyrus getting out of a car, Britney Spears style. (source) In other words, no panties. I haven’t seen a full version of the photo, but there are versions online where Miley’s twat is covered by a big black square. Here’s the tricky part — Miley Cyrus is 17 years old.

Whoops.  This isn’t the first time Hilton has found himself potentially afoul of child porn laws, either. (source)

Miley Cyrus is quoted as calling Hilton an “idiot.” (source) However, given that this is a minor and a twat shot, it begs the question … did Perez Hilton break the law?

I think he very well might have.

Child pornography and child exploitation have always raised strong public emotions. Regardless of the necessity for new laws, this
political football is carried by the Left and the Right alike, as nobody can stand up against stronger child exploitation laws and emerge politically unscathed. Child advocates, anti pornography crusaders, and the religious Right, use “the children,” as an agenda promotion tool, and they do so with plenty of success. For that reason, we now have a structure of child porn laws in this country that is utterly hysterical. (Hysterical not meaning humorous, but meaning completely bat-shit-crazy).

Lemme tell you a little story about Mr. Stephen Knox. This story will show you just how dangerous this kind of content can be.

In March 1991, the U.S. Customs intercepted a package to France containing a request for two videotapes, “Little Blondes” and “Little Girl Bottoms,” and a check from the account of Stephen A. Knox. The videotapes were being sent to an addressee in State College, Pennsylvania. Customs officials searched Knox’s apartment and discovered videos of young girls in skimpy attire dancing and posing provocatively for the camera.

None of the girls in the videotapes were naked, and the genitalia and pubic areas of the girls were always covered. Nevertheless, the camera focused on the girls’ genitalia and pubic areas for increased periods of time.

Knox was indicted for: “(1) knowingly receiving through the mail visual depictions of a minor engaged in sexually explicit conduct and (2) knowingly possessing three or more videotapes that contain a visual depiction of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. 2252(a)(2), (4) and 2256(2)(E).”

At trial in the Middle District of Pennsylvania, Knox argued that possession of the videotapes was legal because they did not contain any “exhibition of the genitals or pubic areas.” The district court looked to the plain meaning of the statutory language, “exhibition of the genitals or pubic area, and held that an exhibition of the pubic area occurs when “there is a display of the region in close proximity to the genitals.” Because the uppermost portion of the inner thigh closest to the girls’ genitals was clearly exposed in the videotapes,the court reasoned that the “exhibition of the genitals or pubic area” requirement was satisfied. The District Court convicted Knox on both counts and sentenced him to five years in prison for each count.

Knox appealed to the Third Circuit, which affirmed the conviction, but it looked at the statute differently. The Third Circuit found that the district court made an error when it found that exposure of the inner thighs counted as a lascivious display. The Child Protection Act (CPA) did not prohibit depictions of body parts just because they were closely located near the genitals. The court of appeals held that the correct way to look at the law and the content is to focus on whether the filming of the children’s covered genitals and pubic area constituted a “lascivious exhibition.”

The Third Circuit found that under 18 USC Sect. 2256(2)(E) these depictions of clothed minors qualified as a “lascivious exhibition of
the genitals or pubic area” because the girls’ genitals and pubic areas, although clothed, were displayed in a sexualized context.

The Third Circuit then re-examined Knox’s conviction on other grounds, and affirmed yet again. The government actually argued for a less stringent standard. The government took the position that the CPA required the genitals or pubic area exhibited to at least bediscernable or visible through the child’s clothing. However, the Court did not agree, and held that the CPA does requires neither nudity nor discernability. Even non-nude depictions, in which the genitalia are not even discernable, could be classified as “lascivious exhibitions.”

So what in the hell does “Lascivious Exhibition” mean?

First off, the “exhibition” does not need to be nude exhibition.

The Third Circuit started by interpreting “lascivious exhibition of the genitals or pubic area” as used in the CPA by looking at the simple text of the statute. United States v. Knox, 32 F.3d 733, 745 (3d Cir. 1994). The court first considered what “exhibit” means, and held that the legal definition of this term meant “to show or to display or to offer or present for inspection.” Accordingly, the genitals or pubic area need not be fully or partially naked in order to be deemed “exhibited.” The court also considered the non-legal usage of “exhibit,” which means “to display, or to present to view or to attract notice to what is interesting or instructive.” From both the legal and non-legal definitions of exhibit, the Third Circuit thought that it was clear that you could still “exhibit” the genitals without nudity.

Knox argued that this would mean that even classical art would be prohibited. For example, even if Michelangelo’s “David” wore a toga, but you could see the outline of his genitals, then this piece of sculpture could be considered to be illegal. However, the court said that works of art and videos of minors in skimpy outfits were very different. Michaelangelo’s statue did not appeal to the sexual desires of pedophiles, while the girls genitals in the videos did.

Additionally, since the CPA required any exhibition to be “lascivious,” the court recognized that the display, without more, was not enough to warrant a conviction. They needed to examine the term “lascivious.” Lascivious means “tending to excite lust, lewd, obscene or tending to deprave the morals in respect to sexual relations.” Therefore, “lascivious exhibition” means a depiction that displays or directs attention to the pubic areas or genital areas of minors with the purpose of sexually stimulating the viewer.

Accordingly, neither discernability nor nudity were required, even when the term was considered as a whole.

Applying the meaning definition of “lascivious exhibition” to the videotapes, the court concluded that those depictions were “lascivious exhibitions.” Although the girls were clothed, their genitals and pubic areas were on display. Furthermore, the court recognized that the purpose of the videotapes was to excite lust by attracting notice to the genitalia and pubic areas. Therefore, the court concluded that the videotapes satisfied the plain meaning of a “lascivious exhibition.”

The Third Circuit then reviewed other courts’ interpretations of a “lascivious exhibition” to determine if the CPA required nudity or discernibility of the child’s genitals or pubic area. United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), set the standard followed by most courts in determining whether material is a “lascivious exhibition.” The Dost court established a multi-factor test for determining when visual depictions were “lascivious exhibitions of the genitals or pubic area.” Id. at 832. In determining whether a visual depiction of a minor is a “lascivious exhibition of the genitals or pubic area,” the trier of fact should look at the following factors:

(1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
(2) whether the setting of the visual depiction is sexually suggestive…;
(3) whether the child is depicted in an unnatural pose, or inappropriate attire…;
(4) whether the child is fully or partially clothed, or nude;
(5) whether the visual depiction suggests sexual coyness…; and
(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

The Third Circuit examined this multi-factor test and concluded that not one of the factors suggested that for a “lascivious exhibition” to
take place, the genitals or pubic area had to be discernible or somewhat visible. The court then discussed United States v. Wiegand, 812 F.2d 1239, 1244-45 (9th Cir.), cert. denied, 484 U.S. 856 (1987). In Wiegand, the Ninth Circuit stated that lasciviousness was not a characteristic of the photographed child but one of the exhibition that the photographer set up to promote pedophilia. The Third Circuit agreed with the decision in Wiegand and further asserted that lasciviousness should be determined by the Dost factors and not by the intent of the photographed child. The court insisted that children suffer enough harm when they pose for pornographic photographs regardless of whether they have a look of sexual invitation on their face. This interpretation of “lascivious” was consistent with the plain meaning of the CPA in that a “lascivious exhibition” required
that the material depict only some “sexually explicit conduct” by the child, which appeals to the lascivious interest of the intended audience.

Knox has been met with approval by other circuits. For example, United States v. Frabizio, 459 F.3d 80, 88 (1st Cir. 2006); United States v. Helton, 302 Fed. Appx. 842, 847 (10th Cir. 2008); United States v. Carroll, 190 F.3d 290, 298 n.7 (5th Cir. 1999), vacated on other grounds, 227 F.3d 486 (5th Cir. 2000) (“Lascivious exhibition of the genital or pubic area does not require full or partial nudity.”); United States v. Horn, 187 F.3d 781, 789-90 (8th Cir. 1999) (held a reasonable jury could conclude that images of minor females at a beach wearing swimsuit bottoms constituted a lascivious exhibition of the pubic area because of the way in which the pictures were framed.)

Accordingly, no matter what is beneath that black square, Perez Hilton might find himself at the wrong end of a child porn prosecution. That
isn’t to say that such a prosecution would make sense or be the right thing for a prosecutor to do. However, I’m sure that there are headline-seeking scumbags (both left wing and right wing) in prosecutors offices across the nation salivating over the thought of prosecuting Perez Hilton on a CP charge. If the image can be seen as sexualizing a minor, and that it could be intended to arouse and excite viewers, then there may be some significant liability on Mr. Hilton’s part.