AL: Montage containing photographs of nude child and adult genitalia is child pornography
McFadden v. Alabama, 2010 WL 2562269 (Ala.Crim.App., June 25, 2010)
Montage containing photographs of nude child and adult genitalia is child pornography and not protected by the First Amendment.
McFadden appealed his conviction for producing child pornography in violation of state law arguing among other things that the materials in question were not obscene. The court observed:
The record reflects that, along with children’s clothing, including children’s underwear, toys, and other children’s items, collage or montage exhibits were introduced at trial. The collage or montage exhibits found in McFadden’s residence contained pictures or photographs of naked and clothed children cut from catalogs, magazines, and other print mediums juxtaposing adult nude body parts, including genitalia, often engaged in sexual acts. Some of the photographs superimposed what appeared to be children’s unclothed bodies with naked adult body parts.
Applying the rules of statutory construction set forth above to the statutes in effect at the time of the commission of the offenses by McFadden, given the reason and necessity for the “ACPA” and the purpose sought to be obtained by the ACPA, considering this Court’s decision in R.K.D., supra, and reviewing the collages or montages as a whole, we conclude that the collage or montage exhibits contain reproductions of genital nudity of children in violation of §§ 13A-12-192(b) and 13A-12-197, Ala.Code 1975. The collages or montages, which include pictures or photographs of unclothed young children combined with adult sexual acts, are clearly obscene and in violation of the conduct proscribed by the ACPA. See §§ 13A-12-190(12) and (13), Ala.Code 1975.
As child pornography, the court noted that the montages were not entitled to First Amendment protection pursuant to New York v. Ferber, 458 U.S. [747] at 762, 102 S.Ct. 3348, [73 L.Ed.2d 1113 (1982); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) and other Supreme Court precedents. The court also held that the pertinent Alabama statute is not unconstitutionally overbroad.
COMMENTS
