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Media Alerts - United States v. Anderson - Eight Circuit
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July 31, 2014
  United States v. Anderson - Eight Circuit
Case Name United States v. Anderson

Headline Eighth Circuit panel affirms denial of motion to dismiss an indictment count concerning distribution of a "morphed image" constituting child pornography

Area of Law First Amendment

Issue(s) Presented Whether the district court properly denied defendant's motion to dismiss the count of the indictment against him concerning distribution of child pornography, where the image in question was a digitally altered image of a child's face onto an adult female's body.

Brief Summary A grand jury charged Defendant with distribution of child pornography, distribution of child pornography to a minor, production of child pornography, and enticement of a minor to engage in unlawful sexual activity. The charges resulted from Defendant sending a digitally altered image, also called a "morphed image," to his eleven-year-old half-sister, M.A. The image portrayed an adult female and male having sexual intercourse, but Defendant had digitally superimposed M.A.'s face over the face of the female. The altered image was sent to M.A.'s Facebook account, with a caption stating in substance, "This is what we will do." Defendant later admitted to law enforcement officials that he created and sent the image.

The relevant statutes define child pornography as including any "visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct." (Emphasis added.) Defendant moved to dismiss the indictment, arguing that this definition is unconstitutionally overbroad under the First Amendment as applied to the morphed image that he sent. The district court denied the motion to dismiss, holding that the morphed image was child pornography that was not protected speech. After entering a conditional guilty plea to the distribution of child pornography charge, Defendant appealed the district court's order denying his motion to dismiss.

A panel of the Eighth Circuit affirmed the District Court's denial of Defendant's motion to dismiss the indictment. The Court first held that the image was not squarely within the U.S. Supreme Court's precedent holding that morphed images that both implicate the interests of real children and depict an actual crime are categorically unprotected speech, because no children were sexually abused in the production of the image. However, the Court further held that the statute, as applied to Defendant, did satisfy the strict scrutiny test under the First Amendment, which requires that the prohibition must be justified by a compelling interest and narrowly drawn to serve that interest. In this case, safeguarding the physical and psychology well-being of the minor M.A. was a compelling government interest. The Court also held that the statute was narrowly tailored, as there was no less restrictive means for the government to protect M.A. from exploitation and psychological harm resulting from distribution of the morphed image than to prohibit Defendant from distributing it.

The full text of the opinion may be found at

Panel Circuit Judges Colloton, Gruender, and Wollman

Date of Issued Opinion July 17, 2014

Decided Affirmed

Docket Number 13-2337

Counsel Michael Norris for the United States and Jennifer Gilg for Defendant

Author Circuit Judge Colloton

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

Edited: 08/04/2014 at 09:31 AM by Joelle Larson

    Posted By: Joelle Larson @ 07/31/2014 10:22 AM     8th Circuit  

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