Face Time

United States v. Hotaling, No. 09-3935-cr (2d Cir. February 28, 2011) (Newman, Hall, CJJ, Restani, JCIT)

John Hotaling cropped the faces from non-pornographic pictures of minor females and morphed them onto the heads of nude adult women engaged in sexually explicit conduct, including one in which the woman was handcuffed, shackled and tied to a dresser. He pled guilty to violating 18 U.S.C. §§ 2252A and 2256(8)(A), which together make it a crime to possess images containing child pornography where the image “has been created, adapted or modified to appear that an identifiable minor is engaged in sexually explicit conduct.” The district court sentenced him to 78 months in prison, having included in the Guidelines calculation the enhancement for possessing an image that portrayed sadistic or masochistic conduct. On appeal, the circuit rejected Hotaling’s “as applied” challenge to the statute as well as his challenge to the sentencing enhancement.

The government has a compelling interested in protecting minors from becoming victims of child pornography, and child pornography is not protected speech under the First Amendment when using the child’s image “implicates the interests of an actual minor.” Hotaling’s argument was that the interests of these actual children were not implicated because the children were not engaged in sexual activity during the creation of the photographs.

But the circuit concluded that the “interests of actual minors” are still implicated when their faces are used to create morphed images “that make it appear that they are performing sexually explicit acts.” Here, the only recognizable persons in the pictures were the minors, and Hotaling had added their actual names to the image files – while he did not distribute the images, they were digitally coded in a way that appeared that he planned to. Accordingly, the images were not “protected expressive speech under the First Amendment.”

The circuit also agreed that the sadism/masochism enhancement applied, even though the image did not actually depict a minor engaged in sexual activity that would cause her pain. A district court should apply the enhancement in cases where, using an “objective standard,” it finds that the morphed image portrays both sexual activity involving a minor and sadistic conduct that includes the likely infliction of pain, physical, mental or other excessive cruelty, or other depictions of violence. The image here clearly met that test, since it appeared to depict a minor engaged in sadistic conduct that would have caused at least some level of pain, and also involved cruelty in the form of forcible restraint.