Shoemaker v. Taylor

An image “morphed” to depict children who appear to be engaging in sexual activity does not constitute protected speech.

Stephen Shoemaker was convicted of one count duplicating child pornography and eight counts of possession of child pornography. Shoemaker filed a petition for a writ of habeas corpus in the California Court of Appeal, the California Supreme Court, and the district court, all of which were denied. On appeal to the Ninth Circuit, Shoemaker argued that six of the picture were innocent nude pictures of children and therefore protected speech. Using the factors from United States v. Dost, the panel concluded that the images were not protected under the First Amendment, and it was not unreasonable for the state court to determine so. Shoemaker argued that some pictures were not child pornography because they were “morphed” images of children depicted as participating in sexual acts. The panel said there is no Supreme Court law established that holds images of “real children morphed to look like child pornography constitute protected speech,” and therefore Shoemaker’s claim failed. Images of children engaged in sexual activity when they are morphed still implicate the interest of protecting children. Shoemaker claimed that the court erred in allowing the jury to use the images’ context when determining whether it was child pornography. However, Ashcroft v. Free Speech Coalition said that this determination may not “turn on” the context in which an image of possible child pornography is presented. The panel said “turn on” meant “depend principally on.” Further, the jury instructions used principles from the Dost factors, and the panel found them to be proper. Although the prosecutor’s closing arguments contained arguments regarding the context of the photographs, the panel found that these statements did not have a “substantial and injurious effect” on the jury’s verdict. Therefore, the panel affirmed the denial of the habeas corpus petition. AFFIRMED.