2006-549, STATE OF NEW HAMPSHIRE v. MARSHALL ZIDEL

The defendant, Marshall Zidel, appeals his conviction on

and orally, for the defendant. Theodore Lothstein, assistant appellate defender, of Concord, on the brief

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney

editorial errors in order that corrections may be made before the opinion goes No. 2006-549 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2 and as applied to his conduct, violates his right to free speech.

both the Federal and State Constitutions, RSA 649-A:3 is facially overbroad, in sexual activity.” RSA 649-A:3, I ( p. 2 2007). The defendant contends that, under wholly computer-generated images, there is a “more common and lower tech procures, possesses, or controls any visual representation of a child engaging Ashcroft, 535 U.S. at 242. As the Supreme Court explained, in contrast to part, that “[a] person is guilty of a felony if such person . . . (e) Knowingly buys, U.S. 234, 242 (2002), and refer to the images in question as “morphed images.” the United States Supreme Court in Ashcroft v. Free Speech Coalition, 535 between “composite” and “morphed” images), we adopt the terminology used by States v. Rearden, 349 F.3d 608, 613 (9th Cir. 2003) (noting distinction issue may more properly be characterized as “composite images,” see United For purposes of this appeal, although we acknowledge that the images at

original non-pornographic camp photographs of the minor females. actual children.” In addition to these images, the CD-ROMs contained the is no specific evidence that the images in question contain the body parts of defendant was indicted for possession of child pornography. “photographs were only his ‘personal fantasy’ and that they were not real.” The questioned, the defendant told the police that the sexually explicit constitutional challenges to RSA 649-A:3. That statute provides, in relevant On appeal, the defendant argues that the trial court erred in denying his

was convicted based upon stipulated facts. United States Constitution. Following the denial of his motion, the defendant Article p. 2 22 of the New Hampshire Constitution and the First Amendment to the prosecution pursuant to RSA 649-A:3, I(e) violated his rights under Part I, Before trial, the defendant moved to dismiss, arguing that the

of the images. The parties stipulated that, “[o]ther than necks and heads, there activity. The defendant and at least one of his family members appear in some touching a female’s genitalia; and four images show comparably explicit sexual individuals as girls under sixteen at the time the images were created. When engage in cunnilingus; two images depict a person digitally penetrating or Department. The parents of all the females involved were able to identify the the time the photographs were taken. He gave the discs to the Amherst Police campers from the summer of p. 2 2004, who would have been fifteen years old at The camp director identified two of the faces in the images as those of

act of sexual intercourse; two images depict a person engaging in or about to with the naked bodies engaging in various sexual acts. One image shows an and necks of minor females superimposed upon naked adult female bodies, director. On one of the discs, the director discovered images depicting heads On July 4, p. 2 2005, the defendant gave three CD-ROM discs to the camp p. 3 3

Court’s obscenity doctrine.”

Amendment,” id. at p. 3 36, and set forth a standard for determining what reaffirmed that distribution of “obscene material is not protected by the First (11th Cir. 2006). In Miller v. California, 413 U.S. 15 (1973), the Supreme Court

“The regulation of child pornography was initially rooted in the Supreme

Obscenity and child pornography are the two categories relevant here. pornography produced with real children.” Ashcroft, 5 p. 3 35 U.S. at 246. unprotected speech “includ[es] defamation, incitement, obscenity, and 245-46; see People v. Alexander, 791 N.E.2d 506, 509 (Ill. 2003). This are not entitled to absolute constitutional protection. Ashcroft, 535 U.S. at restrictions on certain categories of speech satisfy strict scrutiny, and, thus, see or read or speak or hear.” The United States Supreme Court has determined that content-based

omitted). use that alternative.” Playboy Entertainment Group, 529 U.S. at 81 p. 3 3 (citation restrictive alternative would serve the [state]’s purpose, the legislature must statute is “narrowly tailored to promote a compelling [state] interest. If a less U.S. 115, 126 (1989). This places the burden upon the State to prove that the 529 U.S. 803, 813 (2000); see Sable Communications of Cal., Inc. v. FCC, 492 subject to strict scrutiny. United States v. Playboy Entertainment Group, Inc., statute regulates speech based upon its content, application of the statute is on protected speech is a stark example of speech suppression.” Id. at 244. If a

principle, the First Amendment bars the government from dictating what we address the defendant’s claims under the State Constitution, abridging the freedom of speech.’” under both the State and Federal Constitutions. Our settled rule is to first Ashcroft, 5 p. 3 35 U.S. at 244. “As a general “The First Amendment commands, ‘Congress shall make no law . . . questions of constitutional law under the First and Fourteenth Amendments to the Federal Constitution. under the State Constitution is unnecessary. We therefore decide this case and because we are required to follow federal constitutional law, an analysis mere possession of the images in question violates his First Amendment rights, children so that the children appear to be engaged in sexual activity.” Supreme Court precedents compel us to hold that criminalizing the defendant’s MacElman, 154 N.H. 304, 307 (2006). Here, however, because United States N.H. 226, 231 (1983), and cite federal opinions for guidance only. State v.

(decided December 18, 2007). As noted above, the defendant raises his claims

We first address the defendant’s as-applied challenge. We review

Ashcroft, 5 p. 3 35 U.S. at 242.

creating original images, pornographers can alter innocent pictures of real means of creating virtual images, known as computer morphing. Rather than distribution network for child pornography must be closed if the production of

and the harm to the child is exacerbated by their circulation”; and (2) “the

“the materials produced are a permanent record of the children’s participation intrinsically related to the sexual abuse of children in at least two ways”: (1) distribution of photographs and films depicting sexual activity by juveniles is the distribution of child pornography. First, the Court reasoned, “The In Ferber, the Court relied upon three justifications for a proscription on

p. 4 458 U.S. at 756-57 (quotation omitted); see Osborne, 495 U.S. at 109. safeguarding the physical and psychological well-being of a minor.” Ferber, pornography. Both cases recognized that states have a compelling interest “in that a state may proscribe the distribution and mere possession of child 764-66 (1982), and Osborne v. Ohio, 495 U.S. 103, 111 (1990), together hold With respect to child pornography, New York v. Ferber, 458 U.S. 747,

crime.” law.” Id. Amendments prohibit making mere private possession of obscene material a at 568. Accordingly, the Supreme Court held that “the First and Fourteenth infringement of the individual’s right to read or observe what he pleases.” Id. distribution.” Id. It found that such difficulties, if they existed, did not “justify “difficulties of proving an intent to distribute or in producing evidence of actual necessary incident to statutory schemes prohibiting distribution” as a result of rejected the argument that “prohibition of possession of obscene materials is a the general public.” Id. at 567 (citations omitted). Finally, the Court flatly hands of children, or that it might intrude upon the sensibilities or privacy of possession case, there is no “danger that obscene material might fall into the Id. at 566-67 (quotation omitted). Third, the Court found that, in a applied to prevent crime are education and punishment for violations of the “little empirical basis for that assertion” and “the deterrents ordinarily to be lead to deviant sexual behavior or crimes of sexual violence,” because there was Second, it rejected Georgia’s assertion that “exposure to obscene materials may inconsistent with the philosophy of the First Amendment.” Id. at 565-66. protect the individual’s mind from the effects of obscenity” is “wholly materials. Id. at 565-68. First, the Court explained that the asserted “right to all of Georgia’s justifications for banning the mere possession of obscene of his own home.” Stanley, 39 p. 4 4 U.S. at 568. In so holding, the Court rejected “power . . . does not extend to mere possession by the individual in the privacy Supreme Court held in Stanley v. Georgia, 394 U.S. 557 (1969), that this While the government has “broad power to regulate obscenity,” the

at 2 p. 4 46 (citing Miller, 413 U.S. at 24). lacks serious literary, artistic, political, or scientific value.” Ashcroft, p. 5 535 U.S. prurient interest, is patently offensive in light of community standards, and Government must prove that the work, taken as a whole, appeals to the materials may be regulated as obscenity, id. at 24. Under this standard, “the 5

and mental health of the child.” subjects of pornographic materials is harmful to the physiological, emotional,

at issue in causes the child victims continuing harm by haunting the children in years to use of children.” permanently record the victim’s abuse. The pornography’s continued existence Ferber, the Court reasoned: “[M]aterials produced by child pornographers production, “thereby decreasing demand.” Id. at 109-10. Third, relying upon “penaliz[ing] those who possess and view” child pornography will decrease its

upon the possession of child pornography. First, “the use of children as Osborne additionally found that several interests justified Ohio’s ban

retains First Amendment protection.” Stanley.” Id. at 108. performance or photographic or other visual reproduction of live performances, pornography prohibitions far exceed[ed] the interests justifying the Georgia law

Id. Thus, the Court found that “the interests underlying child

the victims of child pornography” by “destroy[ing] a market for the exploitative mind,” pornography which, like obscenity, is unprotected by the First Amendment.” id. Rather, Ohio proscribed possession of child pornography “to protect omitted), Ohio did “not rely on a paternalistic interest in regulating Osborne’s that obscenity would poison the minds of its viewers,” id. at 109 (citation The Court noted that, in contrast to Stanley, where Georgia “was concerned proscribe the mere possession of child pornography. Osborne, 49 p. 5 5 U.S. at 111. In Osborne, the Court extended Ferber ’s holding to allow states to

outside of the prohibition of the statute could provide another alternative.” of sexual conduct, not otherwise obscene, which do not involve live statutory age who perhaps looked younger could be utilized. Simulation Ferber, 4 p. 5 58 U.S. at 763. Thus, “distribution of descriptions or other depictions

The Court noted, however, that there are “limits on the category of child scrutiny,” Alexander, 791 N.E.2d at p. 5 510 (citing Ferber, 458 U.S. at 756-59). generally, “[c]ontent-based restrictions on child pornography satisfy strict incompatible with [its] earlier decisions,” id. at 763, the Court concluded that, a category of material outside the protection of the First Amendment [wa]s not Accordingly, because “[r]ecognizing and classifying child pornography as

at 762-63.

sexual acts . . . were necessary for literary or artistic value, a person over the minimus.” Id. at 7 p. 6 62. It noted that if “visual depictions of children performing children engaged in lewd sexual conduct is exceedingly modest, if not de value of permitting live performances and photographic reproductions of illegal throughout the Nation.” Id. at 761. Finally, the Court found that “[t]he and are thus an integral part of the production of such materials, an activity advertising and selling of child pornography provide an economic motive for controlled.” Ferber, 4 p. 5 58 U.S. at 759. Second, the Court determined that “[t]he material which requires the sexual exploitation of children is to be effectively 6

suffice.” not suggest that, absent this concern, other governmental interests would the participants, those whom it called the ‘victims of child pornography.’ It did

content.”

Id. at 250 (citation omitted).

holding [that possession of child pornography is unprotected] in the concern for

Id. (citation omitted). The Court clarified that Osborne “anchored its

had an interest in stamping it out without regard to any judgment about its themselves the product of child sexual abuse, Ferber recognized that the State its content, was the target of the statute.” Id. Thus, “[w]here the images are contention for two reasons. First, in Ferber, “[t]he production of the work, not indistinguishable from child pornography.” Id. at 249. The Court rejected this the category of child pornography unprotected by Ferber because it is “virtually The Government first argued that virtual child pornography fell within

252-53. restricting the speech available to law-abiding adults.” Ashcroft, 535 U.S. at prohibit illegal conduct, but this restriction goes well beyond that interest by produced by more traditional means.” “[T]he [Government’s] speech ban is not narrowly drawn. The objective is to pornography,’ which include computer-generated images, as well as images 855 (2004) (“the Justices implicitly applied strict scrutiny”). The Court noted, Pornography be Banned Under the First Amendment, 31 Pepp. L. Rev. 825, abuse”); Note, Ashcroft v. Free Speech Coalition: How can Virtual Child the government’s compelling interest in protecting actual children from sexual or picture, that is, not pass strict scrutiny because . . . [it was] not narrowly tailored to advance 791 N.E.2d at 511 (concluding that, in Ashcroft, “section[] 225 p. 6 6(8)(B) . . . did explicitly, applied the strict scrutiny standard described above. See Alexander, In finding section 2256(8)(B) overbroad, the Supreme Court, although not

“created by using adults who look like minors.” Id. at 239-40.

This “section capture[d] a range of depictions, sometimes called ‘virtual child conduct.” Ashcroft, 535 U.S. at 241 (quotations omitted; emphasis added).

any photograph, film, video, picture, or computer or computer-generated image 18 U.S.C. §§ 2251 et seq., which prohibited “any visual depiction, including section 225 p. 6 6(8)(B) of the Child Pornography Prevention Act of 1996 (CPPA), see In Ashcroft, the Supreme Court declared unconstitutional as overbroad

Id. “constitutionally proscribe the possession and viewing of child pornography.” of the State’s interests in this context,” the Court held that Ohio could seduce other children into sexual activity.” Id. Accordingly, “[g]iven the gravity desirable because evidence suggests that pedophiles use child pornography to Court found that “encouraging the destruction of these materials is . . . these materials to destroy them.” Id. at 111 (citation omitted). Finally, the come. The State’s ban on possession and viewing encourages the possessors of p. 7 7

conduct.” because pedophiles may use virtual child pornography to seduce children.” or impulses and any resulting child abuse,” id., the Court concluded that “the more than a remote connection between speech that might encourage thoughts (quotation omitted). Accordingly, because “[t]he Government ha[d] shown no chance an unlawful act will be committed at some indefinite future time.” Id. thoughts.’” Id. It also “may not prohibit speech because it increases the premise legislation on the desirability of controlling a person’s private criminal quite apart from any link to the speech in question.” 566, the Court explained that “[t]he government ‘cannot constitutionally evil in question depends upon the actor’s unlawful conduct, conduct defined as acts is not a sufficient reason for banning it.” Id. Quoting Stanley, 394 U.S. at pornography because “[t]he mere tendency of speech to encourage unlawful

Id. at 253. This rationale could not sustain the ban on virtual child

whets the appetites of pedophiles and encourages them to engage in illegal pornography. First, the Government asserted that “the CPPA [wa]s necessary Second, the Government submitted that “virtual child pornography Court flatly rejected the Government’s justifications for banning virtual child could constitutionally proscribe this speech. Applying this demanding test, the adults.” Id. at 252-53. Court went on to apply strict scrutiny to determine whether the Government “prohibit[ing] illegal conduct” by “restricting the speech available to law-abiding restriction upon virtual child pornography went “well beyond” the interest in

speech fit for adults simply because it may fall into the hands of children. The achieve this objective. abuse of children, as were the materials in Id. at 252. It explained, “The Government cannot ban The Court disagreed and found that the CPPA was not “narrowly drawn” to production. Virtual child pornography is not ‘intrinsically related’ to the sexual

Given its holding that virtual child pornography is protected speech, the

upon some unquantified potential for subsequent criminal acts.” unprotected speech under Ferber. Id. at 251. because “[t]he harm does not necessarily follow from the speech, but depends the Court rejected the government’s assertion that virtual child pornography is

prohibits speech that records no crime and creates no victims by its the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA definition without value,” id. at 250-51. The Court concluded, “In contrast to communicated,” and “Ferber did not hold that child pornography is by child pornography was based upon how it was made, not on what it pornography rarely can be valuable speech,” id., “Ferber ’s judgment about Court found such indirect harms insufficient because, although “child

that, for virtual child pornography, “the causal link is contingent and indirect” pornography “can lead to actual instances of child abuse.” Id. It explained Second, the Court rejected the Government’s assertion that virtual child p. 8 8

upon by

constitutions preclude the government from criminalizing the Constitutions. The defendant “does not claim that the state or federal

[T]he overall set of rationales and principles relied

not constitute child pornography.” According to the defendant: pornography by using real children.” children but depict no children actually engaging in sexually [computer imaging,” thus making it difficult “to prosecute those who produce sic] activity, do together, mandate the conclusion that morphed images, that depict actual determine whether “pictures were made by using real children or by using such material.” Rather, he contends that “Ashcroft, Ferber and Osborne, read

violates his right to free speech under both the Federal and State images of adult bodies, real or virtual, engaging in sexually explicit conduct,” created by combining the head and shoulders of a real, existing child, with RSA 649-A:3 to his private possession of morphed images, namely “images Relying upon the foregoing cases, the defendant argues that applying

“overbroad and unconstitutional.” Id. at 256. recognized in Ferber and Miller,” the Court held that the provision was on virtual images as well.” needed to be banned because advanced technology makes it difficult to real children from virtual ones,” and “cover[ed] materials beyond the categories not tied to the Government’s interest in distinguishing images produced using because section 2256( p. 8 8)(B) left “unprotected a substantial amount of speech protected speech [wa]s prohibited or chilled in the process.” Id. Accordingly, Government could not ban “unprotected speech if a substantial amount of resembles the latter. The Constitution requires the reverse.” Id. Thus, the explained: “Protected speech does not become unprotected merely because it that this argument “turn[ed] the First Amendment upside down.” Id. at 255. It

market for pornography produced using real children necessitates a prohibition Finally, the Government maintained that virtual child pornography

not justify the statute. Id. with virtual child pornography, the Government’s market deterrence theory did removing the profit motive.” Id. Because “there is no underlying crime at all” the speech is itself the crime of child abuse; the prohibition deters the crime by Court noted that “[i]n the case of the material covered by Ferber, the creation of exploitation of real children.” Id. Rejecting this market deterrence theory, the “virtual images promote the trafficking in works produced through the they are often indistinguishable and exchanged in the same market, the

Third, the Government “argue[d] that its objective of eliminating the

pedophiles to engage in illegal conduct,” id. at 253-54. Government [could] not prohibit speech on the ground that it may encourage whether the visual representations are legally obscene.

p. 9 engaged in sexual activity illegal irrespective of

representations of children under the age of 16

visual reproduction of live performances by children. the distribution of depictions of sexual conduct involving live performance or focus in New York’s statute was to combat the harm resulting to children from

as subjects in sexual performances.” RSA 649-A:1. purpose of RSA 649-A:3 is to prevent harm to children resulting from their “use

Ferber, this chapter makes the dissemination of visual Id. at 764-65. Thus, the States Supreme Court’s decision in New York v. performances. . . . In accordance with the United

U.S. at 756-57 (quotation omitted). As with our legislature’s declaration, the children from exploitation through sexual safeguarding the physical and psychological health of a minor.” Ferber, 458 York’s statute, Ferber found that a state has a compelling interest “in (Emphasis added.) Interpreting the identical legislative declaration in New

proliferation of exploitation of children through their

child sexual abuse.

possession of such images.” public policy of the statute demands the protection of preventing that harm, and no right of free speech is violated by prohibiting the network based upon the exploitation of children. The views such an image,” and, thus, “the State has a legitimate interest in those who seek to profit through a commercial

children is a sacred trust and should not be abused by use as subjects in sexual performances. The care of if the original pictures did not involve sexual activity, [since] those children are The legislature finds that there has been a

child pornography. It provides, in pertinent part: RSA 649-A:1 (2007) declares the legislature’s purpose in criminalizing process, the actual, sordid, filming or photography of

likeness.” The State argues that “harm is caused even when only one person depicted as participating in such activity through manipulation of their

identifiable pictures of real children,” they “create harm to those children, even The State counters that because the defendant’s images “incorporate

be cut, pasted, and morphed – but the production – not the “post-production” process where images can unless children are involved in the production process materials cannot be classified as child pornography discussion of Ferber, support the narrow view that p. 10 10

morphed images created from “innocent pictures” of actual children would not

justification for banning protected speech. explained above, the possible circulation of these materials is insufficient advanced any additional narrow justification supporting this interest. As result from the potential distribution of these materials, the State has not

the product of the crime of child abuse, criminalizing the possession of these in Ashcroft. Ashcroft, 535 U.S. at 253-54. Additionally, because they are not Osborne, 495 U.S. at 111, the Supreme Court explicitly rejected this rationale because pedophiles use them to “seduce other children into sexual activity,” the extent the State asserts that these morphed images require destruction

encourage possessors to destroy them, besides the indirect harm that may Moreover, while a ban upon the possession of these morphed images may

Osborne ’s proscription on possession of child pornography is not present here. and did not participate in their production. Therefore, the foundation for Osborne, 495 U.S. at 111, since the children do not know of their existence victims of child pornography cannot “haunt[] the children in years to come,” Ferber, 458 U.S. at 759. The mere possession of morphed images depicting no have been sexually abused or exploited in the production of the materials. (quoting Osborne, 495 U.S. at 1 p. 10 10). These participants are the children who whom it called the ‘victims of child pornography,’” Ashcroft, 535 U.S. at 250 U.S. at 111, its holding is anchored in “the concern for the participants, those produced with real children, see Ashcroft, 535 U.S. at 245-46; Osborne, 495 Further, while Osborne proscribes the mere possession of pornography

committed at some indefinite future time.” Id. at 253 (quotation omitted). prohibit speech because it increases the chance an unlawful act will be to wit, distribution. See Ashcroft, 535 U.S. at 250. The State “may not the harm is contingent upon the occurrence of another arguably unlawful act; necessarily follow from the mere possession of these morphed images. Instead, distributed may be harmful to the depicted child, such harm does not 495 U.S. at 111. Although they may constitute a “permanent record” that if images in this case do not “permanently record the [child]’s abuse.” Osborne, Ashcroft, 535 U.S. at 250-51. Unlike the images in Ferber and Osborne, the pornography was based upon how it was made, not on what it communicated.” In Ashcroft, the Court emphasized that “Ferber ’s judgment about child

to the child whose face is depicted in the image. 249, and a person merely possesses the image, no demonstrable harm results no part of the image is “the product of sexual abuse,” Ashcroft, 535 U.S. at activity, does not promote this interest. Contrary to the State’s assertion, when naked bodies do not depict body parts of actual children engaging in sexual identifiable minor females superimposed upon naked female bodies, where the 57, criminalizing the possession of materials depicting heads and necks of While this interest is undoubtedly compelling, Ferber, 458 U.S. at 756an identifiable child victim of sexual exploitation.

p. 11 using youthful looking adults . . . , this image created . . . virtual child pornography or . . . pornography

victimized every time the picture is displayed. Unlike

engaged in sexually explicit activity. He is thus created of AC, an identifiable minor child, seemingly production of the image, a lasting record has been 11

actually is that of AC or that he was involved in the

sexually explicit conduct with a knowing grin.”

Although there is no contention that the nude body harm to the child. Accordingly, applying the standard articulated in

(emphasis added). The Eighth Circuit Court of Appeals found:

so that the resulting depiction appear[ed] to be a picture of AC engaging in known juvenile, AC, was skillfully inserted onto the body of [a young] nude boy images may be criminalized. In Bach, “a photograph of the head of a well denied, 546 U.S. 901 (2005), in support of its position that these morphed The State cites United States v. Bach, 400 F.3d 622 (8th Cir. 2005), cert.

achieve the State’s asserted objectives. Ferber, and Stanley to the defendant, the statute is not narrowly tailored to issue may express ideas that are unconventional and not shared by a majority. Ashcroft, our homes. We cannot displace this guarantee simply because the materials at might implicate the interests of real children, mere possession does not cause government from intruding into the privacy of our thoughts and the contents of Stanley, 394 U.S. at 567. Thus, while distribution of these morphed images general public observes the images; only the possessor views them. See distribution case, in the private possession realm, neither the real child nor the might seem, pornography, not its possession, Ferber, 458 U.S. at 751-52. Unlike a Ashcroft, 535 U.S. at 242, Ferber involved the distribution of child interests of real children and are in that sense closer to the images in Ferber,” Although Ashcroft stated, in dicta, that morphed images “implicate the

See id. at 566.

This protection is central to our long and sacred tradition of prohibiting the individual’s right to . . . observe what he pleases,” Stanley, 394 U.S. at 567-68.

cf. Ferber, 458 U.S. at 762, the First Amendment protects “the

Finally, however distasteful, reprehensible, and valueless this conduct

Ferber.” Ashcroft, 535 U.S. at 250. ‘intrinsically related’ to the sexual abuse of children, as were the materials in children. Ashcroft, 535 U.S. at 254. Therefore, their possession is “not eliminate the market for pornography produced through the abuse of real p. 12 12

defendant’s convictions are reversed.

BRODERICK, C.J., concurred; HICKS, J., dissented.

do not reach the defendant’s overbreadth challenge. Accordingly, the body parts of actual children engaging in sexual activity. Given this finding, we superimposed upon naked female bodies, and the naked bodies do not depict morphed images that depict heads and necks of identifiable minor females particular case, where the defendant is charged with mere possession of violates his First Amendment right to free speech is limited to the facts of this Our finding that application of RSA 649-A:3(e) to the defendant’s conduct

Amendment. Id. a statute proscribing the possession of child pornography violates the First facts in Bach, this case constitutes one of those instances where application of child. Accordingly, while we might reach a different result if presented with the indicating that any of these morphed images depict similar conduct by a real exploitation of a real child. In contrast, the record here contains no evidence in Bach, the creation of the photograph involved the use and sexual nude boy engaged in sexually explicit activity. Bach, 400 F.3d at 632. Thus, Second, unlike these morphed images, the Bach picture depicted a young

images. Bach if presented with a case involving the receipt or distribution of morphed (f). Therefore, we do not address whether we might reach the same result as was not charged with receiving or distributing the images. See RSA 649-A:3(c)real children arguably may be implicated in such cases. Here, the defendant of a person’s home, but instead disseminate into commerce, the interests of Bach, 400 F.3d at 630. Since these pictures do not remain within the privacy means, including by computer.” 18 U.S.C. § 2252A(a)(2) (emphases added); see mailed, or shipped or transported in interstate or foreign commerce by any child pornography [or material that contains child pornography] that has been § 2252A(a)(2) requires that a person “knowingly receive [] or distribute [] . . . pornography, see 18 U.S.C. § 2252A(a)(5). A conviction under 18 U.S.C. § 2252A(a)(2),” id. at 629 (emphasis added), not possession of child challenged his conviction “for receipt of child pornography under [18 U.S.C.] Bach is distinguishable for two reasons. First, in Bach, the defendant

added). in which the [statute] violates the First Amendment.” Id. at 632 (emphasis is engaging in sexually explicit conduct,” and that “there may well be instances which an innocent picture of a child has been altered to appear that the child Id. The Court noted, however, that “[t]his is not the typical morphing case in p. 13 13

and psychological well-being of a minor.”

sexual activity depicted in morphed child pornography to be a victim of sexual 758 (emphasis added). I believe that a child need not actually engage in the harmful to the physiological, emotional, and mental health of the child.” Id. at opinion that “the use of children as subjects of pornographic materials is in sexual activity. The conduct violates no free speech rights. Ferber Court noted the legislative and professional real children are altered to make it appear as though the children are engaging statute is not fatally overbroad; and that its applicability to the defendant’s omitted). I believe that this interest is implicated when pictures of identifiable in that sense closer to the images in [Ferber, 458 U.S at 756-57 (quotation recognized that States have a compelling interest “in safeguarding the physical I would simply draw the opposite conclusion. For instance, the Ferber Court Although I believe that the majority correctly analyzes the Ferber factors,

not compel any particular result in this case. Moreover, in my view, much of Ashcroft and Ferber is dicta, and, as such, does Id. I believe that this is precisely the case left undecided by Ashcroft.

do not consider it. child engaging in sexual activity” as proscribed by RSA 649-A:3 (2007); that the 747 (1982)]. Respondents do not challenge this provision, and we

pornography, they implicate the interests of real children and are morphed images may fall within the definition of virtual child the children appear to be engaged in sexual activity. Although pornographers can alter innocent pictures of real children so that computer morphing. Rather than creating original images, and lower tech means of creating virtual images, known as Section 2256(8)(C) [of the CPPA] prohibits a more common

Writing for the majority in Ashcroft, Justice Kennedy explained:

possessed and controlled by the defendant are “visual representation[s] of a Id. at 242. of the images in question, I respectfully dissent. I would hold that the images Act of 1996 (CPPA), 18 U.S.C. §§ 2251 et seq., that prohibits morphed images. that the State may constitutionally criminalize the defendant’s mere possession Ashcroft did not challenge the provision of the Child Pornography Prevention in part because the Court explicitly left that question open. The respondents in protected speech under the First Amendment to the United States Constitution 234 (2002), compels a finding that the defendant’s morphed images are First, I cannot conclude that Ashcroft v. Free Speech Coalition, 535 U.S.

Court precedents do not compel the result the majority reaches and I believe HICKS, J., dissenting. Because I believe that United States Supreme p. 14 14

possession and viewing of child pornography,

activity is using their images to create virtual depictions of them engaged in sexual

the Supreme Court held that States may constitutionally criminalize the mere question fall squarely within Osborne v. Ohio, 495 U.S. 103 (1990), in which Ferber. Having reached that conclusion, I would hold that the images in images possessed by the defendant as child pornography within the meaning of The presence of those listed above is sufficient to warrant classifying the the absence of one or more of the Ferber factors is not fatal to this prosecution. Admittedly, not all of the Ferber factors obtain here; in my view, however,

exploitation of children is to be effectively controlled.” de minimis at best.

at 762. I believe that the value of permitting the exploitation of children by engaged in lewd sexual conduct is exceedingly modest, if not de minimis.” Id. permitting live performances and photographic reproductions of children Another factor in the Ferber Court’s reasoning was that “[t]he value of

sufficiently implicate the second Ferber rationale. Thus, I believe that morphed pornographic images of actual children such morphed images “requires the sexual exploitation of [those] children,” id. real children exploit those children, it logically follows that the production of Additionally, if one accepts the premise that morphed pornographic images of that “the harm to the child is exacerbated by their circulation.” must be closed if the production of material which requires the sexual Id. exploit the real child whose image is used and I find the conclusion inescapable by their circulation;” and (2) “the distribution network for child pornography 458 U.S. at 759. As discussed above, I believe that such images sexually record of the children’s participation and the harm to the child is exacerbated of children in at least two ways:” (1) “the materials produced are a permanent record of the children’s apparent participation in sexual activity. Cf. Ferber, child for their production. Nevertheless, such images do produce a permanent children,” id. at 242, morphed images do not require the sexual abuse of a U.S. at 250. Because they can be produced from “innocent pictures of real described as “speech that itself is the record of sexual abuse,” Ashcroft, 535 as directly as the images at issue in Ferber – images that the Ashcroft Court I acknowledge that the morphed images here do not implicate these concerns

depicting sexual activity by juveniles is intrinsically related to the sexual abuse The Ferber Court noted that “[t]he distribution of photographs and films

protecting children from such exploitation. exploitation”). I also believe that the State has a compelling interest in sexually explicit pose, “created an identifiable child victim [i.e., AC] of sexual an identifiable minor child” on the nude body of an unidentified boy in a denied, 546 U.S. 901 (2005) (concluding that image depicting the head of “AC, exploitation. See United States v. Bach, 400 F.3d 622, 632 (8th Cir.), cert. p. 15 15

apply only to images of real children, I would hold that the statute is not Because I agree with the State that RSA 649-A:3 can be construed to

not before the court. whether or not the child depicted must be an actual child, as that question was activity depicted. In my view, that statement was not intended to decide that the statute did not require that a child actually engage in the sexual that the statute did not require “the use of an actual child,” id., the court held was focused upon the “use” of a child in a sexual performance. Thus, in saying performances in order to create them.” Id. This court’s response, therefore, not apply to his “photographs because no children were used in sexual statement out of context. The defendant in Cobb argued that the statute did As the trial court similarly concluded, however, the defendant takes the

Cobb, 143 N.H. at 644 (citations omitted).

child. appearance of having been produced through the use of an actual through the use of an actual child and such material that gives the meaningful distinction between sexually explicit material produced engaging in sexually explicit conduct.” involve the use of an actual child. Furthermore, we see little There is no statutory requirement that the visual representation

engaging in sexual activity.” The defendant cites the following language: A:3] to extend to visual representations that did not involve any actual child The defendant contends that in Cobb, this court “construed [RSA 649-

Id. at 240. does not depict an actual child, the statute goes beyond New York v. Ferber.” overbroad, the Court declared that “[b]y prohibiting child pornography that omitted). In concluding that section 2256(8)(B) was unconstitutionally

computer-generated image or picture, that is, or appears to be, of a minor depiction, including any photograph, film, video, picture, or computer or section 2256(8)(B), is relevant to this case. That section prohibited “any visual provisions of the CPPA unconstitutional, only the first of those provisions, overbroad under the reasoning of Ashcroft. Although Ashcroft declared two State v. Cobb, 143 N.H. 638 (1999), renders that statute substantially The defendant argues that this court’s construction of RSA 649-A:3 in

applied challenge and reach his facial challenge. violate the State Constitution. Accordingly, I would reject the defendant’s ascriminalizing the defendant’s mere possession of the images at issue does not 233 (1983), in the absence of controlling state precedent, I would hold that above-cited federal opinions for guidance only, see State v. Ball, 124 N.H. 226, and affirm the result below.

p. 16 Accordingly, I would uphold the trial court’s denial of the defendant’s motions

so construe the statute, I would not reach the defendant’s final argument. narrowly so that it does not reach [the defendant’s] conduct.” As I would not court having “resolve[d] the constitutional issues by construing RSA 649-A:3

the evidence. That challenge is expressly conditioned, however, upon this

State Constitution.

opinions for guidance only,

images of real children . . . is not covered by the

The defendant’s final challenge to his conviction alleges insufficiency of conclusions. therefore unconstitutionally, overbroad. Other courts have reached similar

controlling state precedent, that RSA 649-A:3 is not fatally overbroad under the

Oct. 23, 2007) (No. 07-7366). I would also hold, using the above-cited federal virtual child pornography.”), cert. denied, ___ S. Ct. ___, 2008 WL 59614 (U.S. reality, of young-looking adults. Ashcroft definition of protected 872 N.E.2d 894, 907 (Ohio 2007) (“[M]orphed child pornography that uses age and does not reach images that appear to be of children but that are, in covers only images of actual persons who are, in fact, under sixteen years of minor, not a virtual child,” the statute complies with Ashcroft); State v. Tooley, pornography requires that “[t]he visual depiction must be of an identifiable

See id. at 425 (concluding that where a statute prohibiting child

infirmities that rendered section 2256(8)(B) of the CPPA substantially, and Accordingly, under this construction, RSA 649-A:3 would not suffer the person under the age of 18, possession of the depiction is not prohibited.”). the age of 18.’ If the sexual performance depicted does not, in fact, involve a (Minn. Ct. App. 2003) (“‘Minor’ is defined [in the statute] as ‘any person under

to mean a “person under the age of 16 years,” RSA 649-A:2, I, RSA 649-A:3 Ashcroft, 535 U.S. at 241. In addition, because “[c]hild” is specifically defined look like real children but that are in fact wholly computer-generated. See activity.” “Child” is defined to mean “any A:3 does not reach the “virtual” pornography at issue in Ashcroft: images that possesses, or controls any visual representation of a child engaging in sexual When RSA 649-A:2, I, is construed to refer to an actual child, RSA 649-

‘person’”). specifically requires that the material at issue utilize or have as its subject a its application to images utilizing actual children” where “[t]he statute (Va. Cir. Ct. Nov. 12, 2003) (concluding that plain language of statute “confines Cf. Commonwealth v. Simone, No. 03-0986, 2003 WL 22994238, at *15, *14 649-A:3 to mean a real child, is a permissible interpretation of the statute. “person” in RSA 649-A:2, I, to mean a real person, and the word “child” in RSA RSA 649-A:2, I (2007) (emphasis added). I conclude that construing the word

“[a] person is guilty of a felony if such person . . . (e) Knowingly buys, procures, unconstitutionally overbroad. RSA 649-A:3, I, provides, in relevant part, that