In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the US Supreme Court struck down a law that banned “virtual” child pornography on the grounds that the government could not constitutionally prohibit pornography that seemed to depict minors, but actually contained no minors at all.
The New Hampshire Supreme Court recently confronted this same issue in New Hampshire v. Zidel.
Our finding that application of RSA 649-A:3(e) to the defendant’s conduct violates his First Amendment right to free speech is limited to the facts of this particular case, where the defendant is charged with mere possession of morphed images that depict heads and necks of identifiable minor females superimposed upon naked female bodies, and the naked bodies do not depict body parts of actual children engaging in sexual activity. Given this finding, we do not reach the defendant’s overbreadth challenge. Accordingly, the defendant’s convictions are reversed.
This is one of those cases that can make your skin crawl if you don’t read it correctly. Yes, Mr. Zidel is probably a sicko. I’m not sure what other kind of person would want to possess such materials.
Nevertheless, the First Amendment is not there for expression that leads us somewhere good. It is there to protect freedom of expression as a good in itself. Had this case turned the other way, Mr. Zidel would have essentially been convicted of thoughtcrime — and even eight years of a Cheney White House didn’t saddle us with such an Orwellian reality.
