Summary
Maryland House Bills 691 and 1027 would expand the definition of child pornography to include computer-generated images that are indistinguishable from an actual minor under the age of 16 years old.
A violation would be subject to up to five years in prison for a first offense and 10 years for a second offense.
Status
H.B. 1027 was amended to bar images that is indistinguishable from an actual identifiable minor as judge by an ordinary person. The amended bill passed both the House and the Senate. It was signed by Governor Larry Hogan on April 30, 2019.
Action
On March 5, 2019, Media Coalition submitted a memo in opposition to the House Judiciary Commitee ahead of a scheduled hearing on March 6, 2019.
Analysis
In Ashcroft v. Free Speech Coalition (2002), the Supreme Court struck down the part of the Child Pornography Prevention Act that criminalized computer-generated images or pictures that appeared to be a minor engaged in real or simulated sexual aactivity or with his or her genitals lasciviously displayed. The Court made clear that child pornography is limited to images created using actual minors engaged in prohibited sexual activity or displaying lascivious nudity. Material that is not a photographic image of an actual minor is protected by the First Amendment and can only be banned if it is found to be obscene under the test in Miller v. California.
The Supreme Court reached this conclusion even though the government argued that the CPPA could be upheld by reading the statute as only applying to images that are “virtually indistinguishable” from images created with actual minors. The majority dismissed this argument, saying that virtual images are clearly distinct from images of actual minors. A virtual image “records no crime and creates no victims by its production.”
The legislation is also unconstitutionally vague. It makes it illegal to possess or retain computer-generated images that are indistinguishable from a minor less than 16 years of age. While it is possible to determine if a person in an image is pre-pubescent or post-pubescent, the legislation provides no guidelines for how to determine if a computer-generated image is illegal because it is “indistinguishable” from someone 15 years and 364 days old, which would be illegal, rather than a 16-year-old, which is legal.
History
On February 7, 2019, H.B. 691 was introduced and referred to the House Judiciary Committee.
On February 8, 2019, H.B. 1027 was introduced and referred to the House Judiciary Committee.
On March 5, 2019, Media Coalition submitted a memo in opposition to the bills.
On March 6, 2019, a hearing was held on H.B. 691 and H.B. 1027.
On March 15, 2019, H.B. 1027 was amended to bar images that is indistinguishable from an actual identifiable minor as judge by an ordinary person. The amended bill passed both the House and the Senate. It was signed by Governor Larry Hogan on April 30, 2019.