N.H. Supreme Court Reverses Virtual CP Conviction

Q Boyer
CONCORD, N.H. — The New Hampshire Supreme Court has overturned the child pornography possession conviction of a man who created composite sexual images by superimposing the heads of minors onto pictures of adults engaged in sex acts.

The defendant in the case, Marshall Zidel, is a resident of Somerville, Mass., who served as the official photographer at a youth camp for more than 20 years. Zidel used software to take the faces of 14- and 15-year-old female camp attendees and place them on the bodies of adults in sexually explicit digital pictures.

Zidel’s digital composites were discovered in 2005 when he accidentally included nine of the images on a CD of photos that he had put together for a camp yearbook that was being assembled. Police arrested Zidel after camp personnel notified them of the images on the CD.

Following his conviction at a bench trial, Zidel appealed his conviction, arguing that the trial court erred in denying his constitutional challenges to the state law under which he was convicted.

The statute that Zidel was charged under states that a “person is guilty of a felony if such person ... [k]nowingly buys, procures, possesses, or controls any visual representation of a child engaging in sexual activity.”

Zidel argued that the images were for his private use and not for distribution, and since the minors whose depictions appear in the composites were not themselves sexually abused, to find his acts criminal would be to extend the statute into unconstitutional territory.

The majority opinion in the Zidel case drew extensively from Free Speech Coalition vs. Ashcroft, a case in which the FSC challenged parts of the Child Pornography Prevention Act (CPPA) of 1996, arguing that those portions of the law were too broad.

Writing for the majority, Justice James Duggan stated that the purpose of the state law in question is to “prevent harm to children resulting from their ‘use as subjects in sexual performances.’”

“While this interest is undoubtedly compelling ... [c]riminalizing the possession of materials depicting heads and necks of identifiable minor females superimposed upon naked female bodies, where the naked bodies do not depict body parts of actual children engaging in sexual activity, does not promote this interest,” Duggan wrote. “Contrary to the state’s assertion, when no part of the image is ‘the product of sexual abuse’ and a person merely possesses the image, no demonstrable harm results to the child whose face is depicted in the image.”

Duggan also zeroed in on the lack of a distributional aspect to the case, stating that “while a ban upon the possession of these morphed images may encourage possessors to destroy them, besides the indirect harm that may result from the potential distribution of these materials, the state has not advanced any additional narrow justification supporting this interest."

“[T]he possible circulation of these materials is insufficient justification for banning protected speech,” Duggan wrote. “[H]owever distasteful, reprehensible, and valueless this conduct might seem, the 1st Amendment protects ‘the individual’s right to.... observe what he pleases.’ This protection is central to our long and sacred tradition of prohibiting the government from intruding into the privacy of our thoughts and the contents of our homes. We cannot displace this guarantee simply because the materials at issue may express ideas that are unconventional and not shared by a majority.”

In his dissenting opinion, Justice Gary Hicks argued that the majority had taken the U.S. Supreme Court’s finding in FSC vs. Ashcroft too far in their analysis of the Zidel case.

“I cannot conclude that [FSC vs. Ashcroft] compels a finding that the defendant’s morphed images are protected speech under the 1st Amendment ... [i]n part because the court explicitly left that question open,” Hicks wrote. “The respondents in Ashcroft did not challenge the provision of the [CPPA] that prohibits morphed images.”

Hicks further noted that other courts have previously recognized that the states have a compelling interest in “safeguarding the physical and psychological well-being of a minor,” and argued that the state was trying to do precisely that in its prosecution of Zidel.

“I believe that this interest is implicated when pictures of identifiable real children are altered to make it appear as though the children are engaging in sexual activity,” Hicks wrote. “I believe that a child need not actually engage in the sexual activity depicted in morphed child pornography to be a victim of sexual exploitation.”

Reed Lee, an attorney with JD Obenberger and Associates and a board member of the FSC, told XBIZ that Hicks was correct in his observation that the Supreme Court did not reach the question of "morphed" images of real children in evaluating the FSC’s challenge to the CPPA — but that fact doesn’t necessarily mean that the majority erred in its ruling in the Zidel case.

“In the Aschcroft case, the court identified two harms that the government had a compelling interest in trying to prevent with respect to child pornography,” Lee said. “First, there is abuse that is intrinsic in making the images. The other is the harm done by the images being out there [in circulation and distribution]. This [Zidel] case turns on the second set of harms the government can regulate against.”

As the minors involved would never have known of the harm done to them if Zidel’s CD hadn’t been discovered by camp staff, and Zidel had made no attempt to distribute the images, that second set of harms is arguably not part of the case at all, Lee said.

“Here there isn’t the knowledge component to the harm,” Less said, adding that in the eyes of the court, the fact that Zidel did not intend to distribute the images undermined the state’s claim that prosecuting Zidel for simply possessing the images furthered a compelling governmental interest.

Speaking to reporters Friday, New Hampshire Attorney General Kelly Ayotte said she was disappointed by the court’s ruling — and did not rule out bringing charges against defendants in similar cases in the future.

“We believe that incorporating identifiable pictures of real children [into sexually explicit images] certainly does present harm to children that should be protected by law,” Ayotte said. “Unfortunately, the issue of a picture of a child being manipulated in that way. I wouldn’t be surprised if that came up again.”