In 1982, the United States Supreme Court addressed the tension between free speech and protecting children by holding child pornography outside the scope of First Amendment protections. Critical to the Court’s decision was the fact that child sexual abuse is necessary to produce child pornography. But what if technological advancement removed child abuse from the equation? The recent phenomena of virtual child pornography and morphed images involve the digital alteration of adult pornography to create the appearance of child pornography. The Alaska legislature amended its child pornography statute in response to these developments, proscribing the possession of morphed images. While the federal government has attempted to regulate this digitally altered child pornography, the majority of states aside from Alaska remain silent on the issue. This Note explores the relationship between free speech jurisprudence and the harm that morphed images pose to children, arguing that Alaska’s child pornography statute is a promising model for other states to address the threat that digital child pornography poses. However, this Note concludes that pornographic material must be intrinsically related to child abuse to justify its prohibition. Accordingly, this Note argues that while a state statutory ban on materials that rely exclusively on digital doctoring is likely unconstitutional, the Alaska statute prohibiting pornographic images that involve the digital editing of an identifiable child’s face onto an adult’s body is constitutional. Other states should thus follow Alaska’s example and enact a statutory ban on morphed images to ensure efforts to protect children keep pace with technological advancement.
Daisy Gray, Do You Know It When You See It? Using Alaska’s Child Pornography Statute as a Nationwide Model for Proscribing Morphed Images, 38 Alaska Law Review 231-274 (2021)
Available at: https://scholarship.law.duke.edu/alr/vol38/iss2/4