LOS ANGELES—Perez Hilton is well known for using his blog as a place to push all boundaries, including sexual ones and, increasingly of late, legal ones. Recently, the bad boy has posted porn to his site without bothering to provide a 2257 link, as required by federal law, and now he is skirting with child pornography after Tweeting a photo of Miley Cyrus Sunday getting out of car apparently sans underwear. Cyrus, of course, is only 17 years old.
The photo is gone but the story is only gaining momentum, and Perez is now attempting in his inimitable way to further stoke it for all the attention he can squeeze out of it, even going so far as to post an “official statement” video to his site claiming that Miley really was wearing underwear when she was photographed getting out of the convertible. He also Tweeted a link to a photo (now removed) apparently taken after she left the car that seems to show the outline of underwear under her dress, claiming it is “photographic proof” that she was appropriately clothed.
The statement video, however, does not make any direct mention of the original photo that got him into hot water. Hilton may not realize that, even if it was Photoshopped, posting the image to his site and distributing it through Twitter was itself a violation of federal child porn law. Even if she was wearing underwear, the photo could still have run afoul of current state and federal child pornography laws. Indeed, even if there were no image at all, charges could still be filed against the controversial blogger.
And it is that fact—rather than a fictitious Hilton v. Cyrus dust-up, or even whether Hilton will be prosecuted—that this story ought to be about, says criminal defense attorney and Free Speech Coalition Board Chair Jeffrey J. Douglas, who is making the media rounds Tuesday to talk about the story at places such as Salon.com, KFWB, KFI and Inside Edition.
While the Los Angeles police do not currently seem interested in pursuing the case, they easily could if they so chose, because no matter how literally you slice the photo in question, it violates the law, according to Douglas.
"Under the law,” he told Salon, referring to a Photoshopped version of the photo, “that is still a crime and it is punishable just the same. For instance, if you were to take the face of an 8-year-old and put that picture on the nude body of even an identifiable, fully developed adult porn star, it is child porn punishable identical to if you took a photo of the actual child."
But even if a photo showing an underwear-clad Cyrus exiting the vehicle had been all that Hilton posted up, that too could be prosecuted as child porn under existing law. According to Douglas, the legal definition of child pornography includes “a visual depiction of an actual minor engaging in sexually explicit conduct,” which has been defined by Congress to include the lascivious exhibition of the genitals, even if the minor is clothed.
“The lasciviousness,” he told AVN, “is easily established in this context.”
But the potential legal liability doesn’t end there. Had Hilton simply marketed the fact that he had an upskirt photo of Miley Cyrus without underwear—“even if no image ever existed”— that act, too, would have placed Hilton in violation of federal child pornography law.
“Forgetting for a moment how astonishingly ignorant it was of Hilton to do this,” Douglas told AVN, “the situation remains a teachable moment regarding how indescribably far-reaching and dangerous the current child pornography laws remain.”
The teachable moment, if it happens, might also include a continuing discussion of the sentences imposed on those convicted of receiving child pornography, which, according to The New York Times, have “effectively quadrupled their average prison term over the last decade.” Not only judges but now a federal appeals court are taking a hard look at the relative fairness of those laws.
Below is the relevant text from the current federal child pornography statutes:
18 USC § 2252A
(a) Any person who—
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(B) advertises, promotes, presents, distributes, or solicits through the mails, or using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains--
(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;
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(7) knowingly produces with intent to distribute, or distributes, by any means, including a computer, in or affecting interstate or foreign commerce, child pornography that is an adapted or modified depiction of an identifiable minor.
Shall be punished as provided in subsection (b);
(1) Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but, if such person has a prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117 [18 USCS §§ 2251 et seq., §§ 1460 et seq., 2241 et seq., or 2421 et seq.], or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.
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(3) Whoever violates, or attempts or conspires to violate, subsection (a)(7) shall be fined under this title or imprisoned not more than 15 years, or both.