is a visual depiction created dot adapted or modified to appear that identifiable minor is engaging in sexually explicit conduct this is commonly known as morphed child pornography the particular image of child pornography that was charged in the indictment and for which he was ultimately convicted was an eight minute video in which the face of his five year old granddaughter had been digitally superimposed on to the body of an adult female actor engaged in various sex acts he did not distribute that image on appeal he raises two issues st is the federal ban on possession of more child pornography unconstitutional as applied to the conduct for which he was convicted  constitutional question the threshold issue this court much is addressed is do more of the images like these fall within the child pornography class of speech that under new york versus ferber is categorically unprotected the answer is no this court should follow the eight circuits opinion anderson and hold that where as here no child was sexually abused in the production of the images and thus the images are not speech enterable to criminal conduct the images remain protected but  with distribution why really limited to this one depiction your honor i again that that's a good question for the government that was there charging decision and that's part of my argument  strict scrutiny analysis is that there are other statues that prohibit distribution and production words and distribute he did admit that he distributed one image not this image it was an image that he distributed to his adult daughter using her sixteen year old face but he did not distribute this image and then and for our purposes the only image that matters to the constitutional analysis and anderson the defendant superimposed a child's face  adult female and gave to sexually explicit activity and send it to run facebook the court in that case the eight nd hell that the more image did not fall within the child pornography class of unprotected speech because no child was sexually abused in the category of unprotected speech as speech entered called a criminal conduct namely the sexual abuse of minors inherent in the production of child pornography now our argument is that this is correct this is  to stevens and its interpretation of ferber and the st amendment and that to fall within this category and the essence the materials produced must create a record or a permanent record or a record at least of an actual child's participation and sexually explicit activity and stevens that's because the court clarified a few things that number one that ferber grounded its analysis and a long established category of unprotected speech and that his speech used as an integral part of conduct in violation of a valid criminal statute stephen said ferber presented a special case the market for chopping obviously was intrinsically related to the underlying abuse and was therefore an integral of the production of such materials and activity illegal throughout the nation it also clarified that ashcroft the spruit free speech coalition and oz born shared the same understanding of fervor and that fervor and it any value to this type of speech well stevens and his clarification for make clear that we that this is not about an ad hoc balancing of social interests benefits and interests and needs to fit a condition for this to protected category a speech that must fall within this category just because decision was after steven just thinking he missed that yes your honor he did not take into account stephen's clarification of ferber which we argue is persuasive it's the supreme court's recent but it did say the interest in protecting children is closer to real pornography in that instance when it comes to more we're not your honor stevens has since said that that how it was made not what it communicated the case reaffirmed that where speech is neither obscene nor the product of sexual abuse it does not fall outside the protection of the st amendment and your honors that's why isn't this speech you'd see  well these images well for for starters on your honor no one is no one has argued that be there the statute does not require that it meet the miller test there's no  evidence that these men these pictures necessarily appeal to the prairie interests i mean some some of them i mean some of them seem as seen from the descriptions in the briefing well you know honor there's there's been no determination and even a little girl sexual interests so our argument would be it's not does not fall into that category and certainly the statute did not require that these materials meet the miller standard and underfed like no i think that on on categorically whether it's in the inside the st amendment or not does that depend on whether it's possession or distribution know under strict scrutiny you say that makes a difference it makes the yes you're actually right makes a difference under strict scrutiny but your honor it may make a difference but it does not make a difference under whether it protected by the st amendment whether they are distributed produced possessed now let's not about the th circuit case where it was an actual two images of children that were more of together so there was a pornographic image of a child's body just put with the face of a different shot that would be that's a different case and we have here if it has a child's body it may be unprotected because in that case creating a record of a child's  performance or their picture of an actual child engaged in sexually explicit conduct you or i would like to address my strict scrutiny argumenta argues the government has failed to show that as applies to mr meacham the ban on possession of more nearly drawn that means actually necessary to serve the government's interest in safeguarding the physical and psychological well being of a minor as a mention as i've mentioned there's no evidence of mr meacham ever distributed the image of child pornography charged in count one a trial he told accorded not emailed or put on facebook and the government did not dispute this he was convicted of merely possessing it there is no evidence that this five year child ever actually the child his five year old face was used for actually learned of the video or what it depicted and also iran we've argued that the distribution or pointed out the distribution of these images in the production with intent to distribute are activities that are already created under federal law under sub kind of harm that may result from the distribution of these images whether it's reputational or emotional harm so the government can't meet its burden here showing that the statute as applied to mr meacham is narrowly tailored you  was a case where this court said that an image portrays sadistic conduct if it depicts a conduct than an objective observer would perceive as causing the victim in the image physical or emotional pain contemporaneously with the images creation but here the p s r which the court adopted asserted only that the material portrayed sadistic conduct because numerous more images and videos include a depiction of an adult male having  would perceive them to be this is significant because if an objective observer could tell by looking at these images that they are cut and pasted images of an adult female body that has a female child's face as the p s r says they are does not satisfied the images not depict conduct that an objective observer would perceive as causing this child physical or emotional pain contemporaneously of the images creation the government also the p s r says the video with this child's who had the sixteen year old face that was emailed that the male depicted in the computer animation was having an orgasm which had cartoon liquid semen shooting into doing a child's mouth cartoon we're talking about cartoon depictions here and and five year old faces on the bodies with breasts and that as i point out my brief to district court basically avoided any application of nesmith standard we're asking you to hold that the sadism and hance ment does not apply whereas here the record does not support that the images were realistic or life like enough to satisfy the  alternatively this alternatively this court could remind remand for findings on that question but i think there's enough here to go ahead and vacate on the ground that the record doesn't support a transcript and that's there any further focus on the video depicting the five year old child because she was the youngest victim and she was still a minor at the time the charge was brought i do believe mr meacham could have been charged with an additional count of distribution based on the facebook video that would have subjected him to a mandatory minimum sentence the charge of possession did not subject him to a mandatory minimum and so through prosecutorial discretion we actually minimized his sentencing exposure essentially the government was not trying to pile on but i think we could have but we didn't charge i mean i'm sorry are you maybe just charged him with something else and just a matter of prosecution discretion maybe just cooked your views obviously i disagree with your honor but i do not believe these images are  unprotected not the st amendment it's the child protection rationale that justifies banning real child pornography just as infer because while morphed images may not cause the same physical abuse as real child pornography it still causes emotional reputational and psychological harm to the victim you know how and because these images do pick their invasion of privacy they create yes that is the same i mean i suppose that we have to look at because he created these images and kept them to himself and never went out to the public to the child to the child's mother to anybody this specific video i believe that's correct but  we're talking about you can make the same argument your honor about real child pornography and the th circuit decision and go vs boland specifically rejected that argument the fact that the child did not know that these images had been created you can look no further than this court's decision in true week where a defendant secretly recorded videos of children using the bathroom the child did not know that those images were created the child was not abused physically at the moment those images were created but there is still a sexual objectification of the child as the nd circuit said in holding there is a tremendous risk that the child will suffer reputational harm look at this video that will become apparent what if under different facts what if mr meacham was a fairly talented our artist and had actually just  a painted the picture of the head of the of of the granddaughter and otherwise created the same image with the photograph of the adult a subset adding up a subsection of the statute specifically creates an exception for paintings and things of that sort so that would not be a thing an image of a real identified would be a real identified lot like that defy a child but you would see that it was a painting that's what you're telling us if there were a painting yes i suppose the painting would could cause emotional harm but that would be protected speech under free speech coalition that would not be a depiction of a real child engaged in sexually explicit conduct the way that we understand child pornography i agree that it has to be a realistic portrayal if you look at the videos the video itself does not depict the face on a single body there are multiple images on the screen at any given time as twelve thousand three hundred and forty six different images going on at one time and there are different bodies if you will that the faces have been placed upon i've looked at this video i would encourage the court to look at the video unfortunately because some of the images you cannot tell that this is not a child maybe it doesn't look like a five year old but the stipulation of facts says the images depict someone under twelve and remember an adult body can be eighteen years old if you put a miner's face on the body of an eighteen year old they're going to look like a minor and they're going to they could look like someone under twelve years old and the fact that these images are are so realistic does cause specific harm to an identifiable child that's what the supreme court said and free speech coalition was was the important difference between morphed images and the virtual child pornography that's created solely with the computer generation computer generated images so again the these images do sexually exploiting children the defendants reliance on stevens and andersen is misplaced because andersen greatly over reads stephens and remember anderson affirmed the conviction and recognized that morphed images do cause harm a distribution count so that's correct we'd followed anderson and said it's it is protected speech and then we apply strict scrutiny how do we deal with the fact that this is a possession offense so a couple is a couple of answers your honor st of all o borne by the supreme court decision on which recognize why you can ban your possession of real child pornography those justifications apply to them or for imagery as well because the supreme court said that banning possession encourages possessors to destroy the images that prevents those images from haunting the victim in the future a and b it prevents pedophiles sexual predators from using such images to either seduce other children or blackmail the child who is depicted the legislative history has congressional findings that that a curse in the supreme do here he created these videos specifically not as private recordings of his own private fantasies he specifically said he created these videos to make his his children ma it's clear that he intended these to be shared with others so if you were to follow the anderson line of reasoning and look at his actual conduct right he said he wanted to make it's not refuse not convicted of all of the it is the motives that you are it's mine and it's relevant your honor because punishing him does not chill his free speech he never intended these to be private recordings of his his fantasies if you will and also remember the computer repair person saw hundreds of these images when i mean i'm having  horribly unprotected speech and the supreme court says you can ban mere possession so he's going to make the same argument for the point that your honor is making about real child pornography l language ok so he intended to place them on the web but our defendant mr meacham well he didn't do that who threatens to do that so you've got possession plus an additional a does not kill protected speech why should he be able to essentially create these incredibly troubling images weaponize them blackmail his family show them samples of the images and threaten to release even more and remember if you're looking for harm to this particular victim the computer repair person who tipped off the police saw hundreds of these images at record page eleven through twelve it indicates an apologist i neglected to put this in my brief but it does indicate and p s r paragraph six says the computer repair person apparently saw another image of the same five no he didn't see the video that was charged but he saw apparently a different image of the five year old that was more this victim is at risk for subsequent reputational harm and remember your daughter this is a family member her grandfather is it seems to me incredibly unlikely she's never going to find out about this the whole family knows these videos were created he caused tremendous harm and emotional harm to them and they are going to get into why did why do you disagree with his reading of stevens and his him saying that stephen says a balancing it approach isn't warranted any more it's all about whether you can tie it to a criminal right yet yes out of are just so stevens was not a child pornography case it was about animal crush videos there's a street paragraph talking about why she absolutely absolutely but you have to read them in context of what was happening in the case the government was proposing it's a simple balancing test to identify protected or unprotected categories of speech and the supreme court said we're not going to do that look at we've not done that in other cases for example look at ferber and further was grounded in it did talk about you know child abuse being part of the production of child pornography certainly but stevens never a established the boundaries of the definition of child pornography it never limited child pornography to specific instances of actual child abuse which would be contrary to numerous cases including this court's decision in trial week which says you do not have to have a specific act of child abuse in order to constitute child pornography and stevens did not disavow the free speech coalition dicta that says north images are closer on a spectrum to the images that can be banned in fur and the nd circuit and the th circuit have looked at free speech callers and said this is a strong indicator that the supreme court believes morphed images are unprotected so if you're going to look at supreme court dicta and you know free speech coalition and stevens are both dicta to my mind the more persuasive dicta is the one that actually involved child pornography the th circuit decision in price which is cited in my brief does a good job i think of distinguishing the stevens case and explaining why it does not  stand for the proposition that you have to have an actual act of abuse at the moment and image is created in order for it to be unprotected child pornography really quickly my time is inspiring on the sentencing issue again i don't know if defense counsel has looked at the video you cannot tell that they are simply cut and pasted again i would encourage the court to look at that judge and decide what would a reasonable objective observer perceive to be happening a reasonable objective observer would perceive a child being sexually penetrated by an adult that is per s sadistic according to this court's precedent in lichtman and and countless others and judge jack knew that she found that the images were statistic this court can look at it and determine well does she does she make the right call that's what this court did in mess with the panel looked at the image and said in that case a reasonable objective observer would not perceive the infliction of emotional pain or physical so i would encourage the court to look at the look at the video and i think that that will solve the problem there there's no need to remain and for judge jack to make additional findings she made the finding that it was sadistic there's a legal test for for that that's similar to sanity the court can look at the images and decide whether they are obscene after district court has made that finding same thing same thing here on the sadism and hands me i have an argument in my brief that the  in because you know obscenity pre dated child pornography child pornography if you came into existence once obscenity became difficult to prosecute right and child pornography does not require obscenity my view is they would satisfy the test for  you know i would like to start st with that sentencing issue about what judge the judge did at sentencing the court did avoid the issue when defense counsel cited and as beth the court the form informed defense counsel that the defendant had posted that image on the internet which seemed to be the most important thing in her mind at the time that this was raised she was the judge that had been reversed and as myth and then without of trying t standard she basically punted the issue to this court and said we're going to give the th circuit more cases to look at my friends in the government here says that this court should look at the images and decide for itself argument that's not appropriate for a court of appeals to be making these determinations in the st instance this court's role is to review findings of the district court for clear error the judge in this case did not make that determination so it's an essence there's nothing to review that has a female child's face it didn't say that it was lifelike or realistic and so all based on this statements in this p s are and what we have from the transcript of the sentencing this quote you find that there was not enough to jacobs field services north american corporate