New Lows in Law Enforcement

I suppose I should be inured to crazy stories out of Florida. Personally I'm hoping this one is another internet hoax that escaped from Onion or some other satiric site. But it's so hard to tell anymore. In a month when Homeland Security pull out all the stops to counter an invasion by cartoon characters in the city of Boston, reality starts to run a little thin.

Check out this story. If you can believe it, two teenagers have been convicted of child pornography for taking private pictures of themselves. The facts of the case, taken from the decision of the court, seem to be as follows. On 25 March 2004 two teenagers, 16-year-old AH, and her 17-year-old boyfriend, JGW, "took digital photos of themselves naked and engaged in sexual behavior." This would seem to be harmless enough, depending what kind of "sexual behavior" is meant, but not according to the state of Florida. The state admits that "the photos were never shown to a third party" but asserts that the state has a "compelling ... interest in preventing the production of these photographs," and goes on to claim implausibly that "criminal prosecution was the least intrusive means of furthering the State's compelling interest." Following this line of illogic, Florida charged 16-year-old AH with "producing, directing or promoting a photograph or representation that she knew included sexual conduct of a child in violation of section 827.071(3), Florida Statutes." AH's seventeen-year-old boyfriend, JGW, was charged in addition with possession of child pornography. This latter was apparently because AH and JGW "e-mailed the photos to another computer [JGW's?] from AH's home."

On 24 October 2005 AH "filed a motion to dismiss ... arguing that section 827.071(3), Florida Statutes, was unconstitutional as applied to her." She argued this on the commonsense grounds that violating her and her boyfriend's privacy was obviously not "the least intrusive means of furthering a compelling state interest", noting by the by that her "victim" JGW was in fact older than she was. Although in any rational jurisdiction this should have been the end of this nonsense, we read that on 30 November 2005 her motion to dismiss was denied.

The illogic of this? Follow along closely; this is like reading medieval theology--it requires devout attention.

Assuming that the child’s right to privacy is implicated, the standard for evaluating whether the State may regulate the sexual conduct of minors, articulated in B.B. v. State, 659 So. 2d 256, 258-59 (Fla. 1995), requires the State to show both that it has a compelling interest and that it is furthering this interest in the least intrusive manner.

As to the first prong of the test, whether the State has a compelling interest in regulating the sexual behavior of minors, this Court recognizes a compelling state interest in protecting children from sexual exploitation, particularly the form of sexual exploitation involved in this case. This compelling interest exists whether the person sexually exploiting the child is an adult or a minor and is certainly triggered by the production of 117 photographs of minors engaging in graphic sexual acts.. State v. A.R.S., 684 So. 2d 1383, 1387 (Fla. 1st DCA 1996).

The Court further finds that prosecuting the child under the statute in question is the least intrusive means of furthering the State’s compelling interest. Not prosecuting the child would do nothing to further the State’s interest. Prosecution enables the State to prevent future illegal, exploitative acts by supervising and providing any necessary counseling to the child. The Court finds that the State has shown that Section 827.071(3), Florida Statutes, as applied to the child, is the least intrusive means of furthering the State’s compelling interest in preventing the sexual exploitation of children, rendering the statute constitutional.

Now please note--prong 1--Florida's "compelling interest in regulating the sexual behavior of minors" consists in its need to protect children from exploiting themselves. Was there any evidence shown whatsoever that AH or JGW used or intended to use these photographs for any purpose except as a remembrance of a special occasion? Well, I don't know--we don't have the trial transcript available (quite properly by the way) and so maybe that was covered, but it is the key question, and it is entirely ignored in the decision.

As for prong 2--that trying AH (and for that matter JGW) as child pornographers was the "least intrusive" option for the state--the argument (if that's what it can be called) is ludicrous. "Not prosecuting the child would do nothing to further the State’s interest." That's the entire argument. In point of fact the state could have taken many actions that did not involve harming AH and JGW by labeling them (falsely) as child pornographers, and that could have involved supervision and necessary counseling to protect them from exploiting themselves in the future. I would have suggested as a good start dismissing the original case with prejudice. However, that's neither here nor there. Only an absolute idiot could suggest that this extreme approach was the "least intrusive" option for Florida. As Frank Zappa once memorably observed in another connection, it's like opting for decapitation as a cure for dandruff.

Not that I see anything that needs "curing" here. People memorialize important moments in their lives in a variety of manners; if taking private photographs is to be construed as "child pornography", then what about minors writing accounts of their experiences in diaries or journals? People have a right to preserve their memories and document their lives in whatever way works for them. To first violate their privacy and then use that as an excuse for prosecution seems to me to go beyond Kafka into stark insanity.

Ah, but did they have a right of privacy? Not according to Judge Wolf, who reviewed the lower court decision on appeal. According to Wolf, they lost their right of privacy by the mere act of recording the event. I cannot stress this enough--in Florida the mere fact of keeping a record of one's private affairs constitutes the giving up one's right to privacy, if Wolf's reading of the law is correct.

This is only his first point, however. In his second point the Judge appears to go off the deep end, spouting ageist clichés and suchlike nonsense. According to Judge Wolf, teenagers have no reasonable expectation of privacy for pictures or other mementos because "Minors who are involved in a sexual relationship ... have no reasonable expectation that ... the photographs will not be shared with others intentionally or unintentionally." Minors, it seems, by definition cannot "be involved in a mature committed relationship," unlike adults, and so "have no reasonable expectation that their relationship will continue." He goes on to speculate that greed might be a good motive for somebody to show the pictures to others.

The irrationality of all this makes my skin crawl. Something is missing in the judge's argument. What does the tendency of teenagers who engage in sexual relationships to ultimately move on to another partner have to do with the likelihood of the pictures being shown to others? I suppose the judge is suggesting that a former sexual partner would be more likely to share the pictures with others than a present sexual partner, but this seems tenuous. Does the judge have any data to support this notion? And in particular does he have any data to suggest that this risk is so great as to be a significant danger?

In my experience, most such mementos end up destroyed or tucked away somewhere safe after a breakup. As far as I can tell, only a minority of these end up circulating to others through malice or indifference. Judge Wolf seems to be suggesting that the situation here is different, because one partner or the other would almost certainly be motivated by bravado or greed to distribute these pictures. I would like to see the evidence that supports this astounding assertion--and I don't mean anecdotal evidence about the occasional exception. I mean hard statistical data about the actual likelihood of it happening.

Here is what Judge Padovano makes of the argument in his dissent:

The majority concludes that the child in this case did not have a reasonable expectation that the photographs would remain private. To support this conclusion, the majority speculates about the many ways in which the photographs might have been revealed to others. The e-mail transmission might have been intercepted. The relationship might have ended badly. The boyfriend might have wanted to show the photo to someone else to brag about his sexual conquest. With all due respect, I think these arguments are beside the point. Certainly there are circumstances in which the photos might have been revealed unintentionally to third parties, but that would always be the case.

The Judge goes on very rationally to note that "We cannot gauge the reasonableness of a person’s expectation of privacy merely by speculating about the many ways in which it might be violated." We need to keep in mind here what AH actually did. She took pictures of herself and her boyfriend engaged in intimate acts and gave copies to her boyfriend. Personally I find that kind of touching. Like any other couple, they had a reasonable expectation of privacy in their intimate lives. Judge Padovano goes on to observe with clear common sense:

The critical point in this case is that the child intended to keep the photographs private. She did not attempt to exploit anyone or to embarrass anyone. I think her expectation of privacy in the photographs was reasonable. Certainly, an argument could be made that she was foolish to expect that, but the expectation of a sixteen year old cannot be measured by the collective wisdom of appellate judges who have no emotional connection to the event. Perhaps if the child had as much time to reflect on these events, she would have eventually concluded, as the majority did, that there were ways in which these photos might have been unintentionally disclosed. That does not make her expectation of privacy unreasonable.

Exactly. I don't see that Judge Wolf's strictures make any sense; they could apply to anybody who keeps private records. AH and her boyfriend had a reasonable expectation that their private affairs would remain private. The fact that there are perverts out there who would love to get their hands on such pictures in no way changes that. And that the state of Florida chose to violate their privacy, and then prosecute them on such grounds, is an outrage. It is the height of stupidity, discourteous in the extreme, and to my way of thinking, downright perverted. Judge Wolf and the State of Florida should be ashamed of themselves.

Afterword: I see that The Lippard Blog also has this story. The text of the decision can be found here. A PDF is available here.