A 16-year-old who texted a video of herself engaging in a consensual sexual act with an adult was “involved” in distributing child pornography and not protected by the constitutional right to free speech, Maryland’s second-highest court ruled this week.
In its reported, 3-0 decision, the Court of Special Appeals rejected arguments from the girl’s attorney that Maryland’s prohibition on child pornography does not apply when a child is both the willing subject and distributor of the material. The court also refuted claims the child has a First Amendment right to distribute photos of herself.
“The law is not limited to non-consensual or abusive conduct and it contains no exception when the minor depicted is also the distributor,” Judge Matthew J. Fader wrote for the court. “The state has an indisputable interest in protecting minors from exploitation as subjects in pornographic material whether at the hands of others or by their own conduct.”
In its decision, the appellate panel affirmed a juvenile court’s finding the girl, identified as S.K., was involved in distributing child pornography when she texted to her friends the video of herself performing fellatio. But the Court of Special Appeals overturned the Charles County Circuit Court’s finding that she had “displayed” the item to minors, saying that texting is not included in the law’s list of methods for displaying.
The appeals court’s decision involved interpreting what it called the “unambiguous” Section 11-207(a)(4)(i) of the Criminal Law Article, which bars a “person” from knowingly distributing “any matter, visual representation, or performance … that depicts a minor engaged as a subject in … sexual conduct.”
A 16-year-old girl is clearly a “person,” and S.K. was a “subject” of the video engaged in sexual conduct, the court said.
“Unless and until the General Assembly exempts from the reach of the statute minors who distribute materials depicting their own consensual sexual conduct, that conduct is prohibited by the plain language of Section 11-207(a)(4)(i),” Fader wrote.
In rejecting the free-speech argument, the court said pornography involving adults is protected by the First Amendment as their “expressive” conduct but that child pornography is not protected because of the harm it does to the youngsters’ physical and psychological well-being. The state has a compelling interest in protecting children from sexual exploitation and abuse, the court added.
With child pornography, “’the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake that no process of case-by-case adjudication is required,’” Fader wrote, quoting from the U.S. Supreme Court’s 1982 decision in New York v. Ferber.
Though 16-year-old S.K. was old enough, under Maryland law, to consent to the sexual conduct, “the recording of the act still becomes a ‘permanent record’ of the participation of a child who the legislature may reasonably have determined might lack the judgment to understand the consequences of allowing the creation and distribution of that record,” Fader added.
S.K. texted the video to a 16-year-old girl and 17-year-old boy with whom S.K. was in a friendly competition to “outdo” each other with their recordings, according to the court’s opinion. When the trio had a falling out, S.K.’s now-former friends reported the video to their school’s resource officer.
The state charged S.K. with distributing child pornography and displaying an obscene item to a minor. Sitting as a juvenile court, the circuit court found S.K. involved in both offenses and placed her on probation with conditions, including that she undergo a psychiatric evaluation.
S.K. sought review by the Court of Special Appeals, which overturned only the displaying offense.
The court said Maryland law specifically prohibits displays in a still picture, photograph, book, pamphlet or video game, among other media — but not text message.
“The very specific list of items covered by (the law) has not kept pace with the ways in which obscene images may be displayed to minors,” Fader wrote. “The last addition to that list was ‘video game,’ which the General Assembly added in 2006. For perspective, the first iPhone was released the following year. It is not within our province to expand the coverage of the statute beyond the contours of its unambiguous language.”
The Maryland public defender’s and attorney general’s offices each stated Thursday that they are reviewing the rulings and have made no decision yet on whether to seek review by the Court of Appeals.
Fader was joined in the opinion by Judges Kevin F. Arthur and Raymond G. Thieme Jr., a retired jurist sitting by special assignment.
The Court of Special Appeals rendered its decision in In Re: S.K., No. 617 September Term 2017.