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.

15 Responses to Did Perez Hilton violate federal child porn laws?

  1. yoshi says:

    Curious – does age of consent laws play into this at all? If the age of consent was 16 in which she was photographed – does that make a difference?

  2. Strangely enough, no.

  3. Zach says:

    I’ve been contemplating this issue quite a bit lately as its one of the few strict liability crimes that aren’t “minor”. (I guess bar study can be relevant to the real world after all!)

    First off, the standard disclaimer: I don’t support pedophiles nor do I have sympathy for them!

    I see a compelling governmental interest in “protecting the children” and I think we all detest pedophiles with a passion.

    My problem is that the language used by the courts in the precedent that you cited, was vague to a point where innocent people could be harmed.

    Frankly, it seems to me that the only way for these standards to be applied effectively is to look at the perspective of the accused. Because, what might be child porn to scumbag X may be non-sexual family videos to notascumbag Y.

    Heck, what about the recent movie “Babies”. It was full of naked chitlen keester. My family and I watched that flick and did nothing but coo, grimace and laugh, but I’m afraid that somewhere some schmuck was getting his jollies in that movie.

    I also see flaws in the test factors. For example, “(1)whether the focal point of the visual depiction is on the child’s genitalia or pubic area;” seems straight forward enough at first glance. However, I got to wondering what amount of time would be sufficient to constitute a focus point. What if Mom stinks at working the video camera and thinks she is focusing on little billy from the waist up but instead is filming from the waist down and forgets the camera is on? In such a situation, a video “focusing on the pubic area” for more than a second could occur. This video could get out and while Mom certainly meant nothing sexual by it, greaseball X might find it interesting.

    Looking at the other factors I see problems as well;

    (2) whether the setting of the visual depiction is sexually suggestive…;

    If this means actual sexual activity then fine…I’ve got no argument as the language is clear and explicit as to what is wrong…but kids move in all sorts of ways. Sometimes those ways could be “sexually suggestive” to a pedophile but are totally innocuous to the child/family.

    (3) whether the child is depicted in an unnatural pose, or inappropriate attire…;

    Again, if this means an actual sex position or something that can have no other purpose but for sexual activity then fine…no argument. But like I said above, kids move in strange ways and hence may pose in odd positions that are not inherently sexual to the child or to non-pedophilic people.

    (4) whether the child is fully or partially clothed, or nude;

    Well this one makes more sense than the others, but still, whats sexual to a pedophile is probably not sexual to a non-pedophile (See “Babies”)

    (5) whether the visual depiction suggests sexual coyness…; and

    Again, the measure would be what the accused believes the depiction to represent. Which is all but impossible, sans telepathy or a confession.

    (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

    Intended by whom? The original videographer, the buyer(s)/seller(s) of the material, the pedophile…who!?!

    So, in the end, I agree with your assessment that the US child porn laws are questionable in many respects. I have no sympathy for the guilty, but I am definitely interested in making sure the innocent don’t get dragged down with the scumbags.

    In regards to Mr. Hilton the guy is certainly a character and characters are not above the law (no matter how flawed they may be). So, I agree with you, as everything stands now, based on your case law that does not require actual nudity, I can’t see a way for him to not be guilty… I’m sure his attorney will disagree of course, so hes got that going for him.

  4. Dan says:

    at the very least I figure Hilton should put up all the relevant 2257 stuff on his page lol

  5. I’ve been wondering about the recent animal cruelty SC decision in relation to CP. My layman’s reading of the case seems to leave Obscenity Law as the only bulwark against the assembly and distribution of compilations not actually produced by the distributor.

    As long time opponent of Obscenity Law, I’m wondering if I need to rethink things…

  6. […] Did Perez Hilton violate federal child porn laws? « The Legal Satyricon […]

  7. Guest says:

    Under such precedent, it seems Ms. Cyrus’s managers, agents, and other enablers (e.g., Dad) could be charged for her videos, TV appearances, etc. that are “lascivious?”

  8. I have to echo some of what Zach said above (with the same obvious caveats about not endorsing child pornography (though that should go without saying)) — the law and the proposed test are so vague as be entirely subjective based on the trier of fact’s conception of what constitutes a “lascivious exhibition.” Some obvious flaws — your kids can wear whatever crazy new pre-teen bathing suit styles they want at the beach, but you can’t take photos of them without potentially subjecting yourself to the child pornography laws. Kids wear lots of stupid clothing, and lots of stupid, inappropriate clothing, but that doesn’t mean it’s per se “obscene” in the sense that it is a violation of moral sensibilities. Basically the law as it stands now is that Miley Cyrus can be an idiot enough to forego wearing panties while lunging out of a limo in a mini-skirt — and that’s perfectly okay — but anyone reporting on her lapse of taste and judgement now gets whacked as a child pornographer. Not a very good application of the law.

  9. Jay says:

    I’m amused that age of consent under state law is not implicated. Leads to conclusion that in 38 states, you could personally disrobe Ms. Cyrus, stare at her genitals all you like, and engage in all sorts of lascivious acts with her, so long as she consents. But if she filmed it and mailed you a copy so you could remember your time together, you’re now guilty of a strict liability federal crime. Even if you were married to her.

    I’m not into kiddie porn, but there should be some liberalization of the law.

    • MikeZ says:

      Of course I think Ms. Cyrus would be up for even bigger Child Porn charges. It’s not legal for her to film herself sexually as a minor, and the putting it in the mail only makes it worse. The guy in that case only has to worry about the possession, not the distribution charges.

  10. DB Cooper says:

    Interesting stuff. The Third Circuit’s reasoning is particularly circular and troubling:

    * An image is unlawful only if it is lascivious.

    * To a perverted defendant, even a clothed, undiscernible image of a child’s midsection is lascivious.

    * Someone who looks at lascivious content of a child MUST be perverted.

  11. Sean F. says:

    I’m disappointed in all of you.

  12. JustJss says:

    I was hoping *someone* would indict him. And convict him.

    Not because I think he should go to jail. But because he can afford to defend himself all the way up and presumably would benefit from the publicity; and because a Supreme Court case on whether that particular image constitutes child porn would be both hilarious and instructive; and I think Hilton would ultimately be acquitted.

    I also think he’s an asshole, but that isn’t a crime.

    I do think an equally interesting question that has mostly been ignored is: Was Ms. Cyrus’ privacy violated? Because even celebrities have some privacy rights … which I think may extend to cover the unapproved publication of candid photos of their crotches.

  13. […] and ebaumsworld and everything.  And it reallly isnt child porn is it? [Ed.'s note: CHECK YOU THIRD CIRCUIT PRECEDENTS.]  you couldnt seee anything, it was like seeing me in a bathing suit.  people that are minors […]

  14. […] Did Perez Hilton violate federal child porn laws? « The Legal … […]

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