United States v. Clifford Mecham, Jr.
N/A (slip opinion) (2020)
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Rule of Law:
Morphed child pornography, created by superimposing an identifiable minor's face onto a sexually explicit image of an adult, is not protected speech under the First Amendment because it implicates the same governmental interest in preventing the reputational and emotional harm to children that justifies the proscription of real child pornography.
Facts:
- Clifford Mecham took his computer to a technician for repairs.
- The technician discovered thousands of images depicting nude adult bodies with the faces of children superimposed and reported them to the police.
- Mecham admitted to investigators that he had added the faces of his four granddaughters, aged four, five, ten, and sixteen, to pornographic photos and videos of adults.
- Mecham stated he created the images to retaliate against his family for preventing him from having contact with his grandchildren.
- He emailed some of the morphed videos to his oldest granddaughter.
- The specific video leading to his conviction depicted his five-year-old granddaughter's face morphed onto an adult female's body engaged in various sex acts with a male whose face was Mecham's.
Procedural Posture:
- A grand jury charged Clifford Mecham in the U.S. District Court for the Southern District of Texas with one count of possession of child pornography.
- Mecham filed a motion to dismiss the indictment, arguing that the First Amendment protected the morphed images.
- The district court (a federal trial court) denied the motion to dismiss.
- Following a stipulated bench trial, the district court found Mecham guilty.
- The district court sentenced Mecham to a prison term of 97 months.
- Mecham (appellant) appealed his conviction and sentence to the U.S. Court of Appeals for the Fifth Circuit, challenging the constitutionality of his conviction and a sentencing enhancement.
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Issue:
Does the First Amendment protect the possession of 'morphed' child pornography, which is created by superimposing the face of an actual minor onto a sexually explicit image of an adult, when no child was physically involved in the creation of the underlying sexually explicit act?
Opinions:
Majority - Judge Costa
No, the First Amendment does not protect morphed child pornography. Because morphed pornography uses an image of an identifiable, real child, it directly implicates the compelling government interest in preventing the reputational and emotional harm that justifies the categorical exclusion of real child pornography from constitutional protection. The court distinguished this case from Ashcroft v. Free Speech Coalition, which protected virtual pornography where no real child was depicted at all. It found that morphed images are 'closer to the images in Ferber' (real child pornography) because they feature an identifiable minor. The court rejected an argument based on U.S. v. Stevens (animal cruelty videos) that child pornography is only unprotected if it is 'intrinsically related' to an underlying crime of child abuse. The court reasoned that Stevens did not overrule the long-standing rationale from Ferber and Osborne concerning reputational and emotional harm, and a narrow reading of Stevens would improperly undermine prosecutions for other forms of child pornography, such as 'lascivious exhibition,' that do not require an underlying act of sexual abuse.
Analysis:
This decision aligns the Fifth Circuit with the majority of circuits that have addressed this issue, deepening a circuit split with the Eighth Circuit. It solidifies the principle that the lack of a child's physical participation in a sexually explicit act is not dispositive for First Amendment analysis when a real child's identity is exploited. The court's refusal to narrowly interpret U.S. v. Stevens reinforces that reputational and emotional harm is a sufficient and independent justification for proscribing materials depicting children, thereby strengthening the legal basis for prosecuting creators of morphed images who cause significant psychological harm without direct physical abuse.
