Images of real children that were initially innocuous, but which were digitally morphed so the children appear to be engaging in sexual activity, are not protected speech. Defendant was convicted in California state court of misdemeanor counts of possession and duplication of child pornography (Pen. Code, §§ 311.11, 311.3). He exhausted his state remedies via direct appeal and petition for writ of habeas corpus, then filed a federal habeas petition raising sufficiency and First Amendment issues. Defendant appealed the district court’s denial of his petition. Held: Affirmed. The U.S. Supreme Court has held that “nudity, without more is protected expression.” (New York v. Ferber (1982) 458 U.S. 747.) However, it has upheld laws which criminalize the possession of “lewd” or “lascivious” depictions of nude children. Using the factors set forth in U.S. v. Dost (S.D. Cal. 1986) 636 F.Supp. 828, the court found some of the images that defendant claimed were innocuous nude pictures of children to be pornographic. As to the initially innocuous images of children which had been “morphed” to depict the children engaged in sexual activity, the court found them not protected speech. This issue had been left open when the Supreme Court found that virtual child pornography—entirely digitally created images of children—was protected speech. (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234.) However, the court noted in Free Speech Coalition that images of children which have been morphed to make it appear as though they are engaged in sexual activity implicate the interests of real children. Thus, the state court reasonably rejected defendant’s First Amendment claim regarding the morphed images.

The trial court did not err when it instructed the jury it could consider the context in which the images were displayed in determining whether they were pornographic. The instructions allowed the jury to consider the “setting” in which the images were displayed (an adult website) in determining whether they were pornographic. While Free Speech Coalition provides that a child pornography determination may not “turn on” the context in which the image is presented, the instruction here may have been understood by the jury as meaning the “backdrop” contained in the photograph itself. This would render “setting” a factor related to the content of the image rather than the context in which the image was presented. Thus, the instruction was not erroneous.

The prosecutor’s argument that emphasized the context in which the images were found was error, but nonprejudicial. The prosecutor repeatedly urged the jury to consider the context in which the images were presented, a website containing adult pornography, arguing their placement there rendered the images pornographic. This is error, as Free Speech Coalition prohibits a determination of whether images are prohibited from “turning on” the fact that otherwise innocuous images were displayed in a pornographic context. However, the error was harmless.