Man? He was a 19 year old teenager.  Granted, he was an adult at the time he was charged with this crime, but the pictures he was accused of taking, and later plead guilty to, were taken when he was a teenager.  I have a bit of a problem with this story.  Reading it reminded me too much of my defense of James Grady back in 2002 on similar charges here in Colorado.  You can read about Grady’s case here. I’ve reprinted the entire Associate Press story below for your convenience.

BRADENTON, Fla. – A 19-year-old man who posted a nude photo of his younger ex-girlfriend on her MySpace page was sentenced to 30 days in jail.

Anthony D. Rich pleaded no contest Tuesday to child abuse and attempted child abuse. He is expected to begin his sentence in October.

Prosecutors reduced the charges from sex crimes that could have branded Rich a sex offender for life. He was 17 when he posted the photo of his then-15-year-old girlfriend on the social networking Web site that’s owned by News Corp.

Rich had dated the girl for more than two years. He posted the photo after they broke up. The girl consented to having the photo taken, but Rich did not have permission to post it, authorities said.

Since my defense of Grady, I’ve managed to carve myself a strong place in defending people on similar charges.  Now, I am one for protecting chidren, no doubt about it, but a case like this shouldn’t have been prosecuted.  In fact, I firmly believe the charges violated Anthony Rich’s First Amendment rights. 

The First Amendment to the United States Constitution provides that “Congress shall make no law … abridging the freedom of speech.” The Due Process Clause of the Fifth Amendment to the United States Constitution states that “No person shall … be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment makes this limitation applicable to the states, see Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), and to their political subdivisions, see Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).   In this case, I believe The statute at issue violates the First Amendment since the conduct is in fact a form of protected expression under the First Amendment.  The law is an unconstitutional attempt to regulate the content of this teen’s speech and expression.

The First Amendment protections apply fully to the expressive component of photographic sessions with a consenting fifteen year old girlfriend who, from what I understand, appeared in non-pornographic and non-obscene photographs. Focusing on the content of the images memorialized in the photographs of this woman, this case is not about obscene material or child pornography, and, thus, does not present a situation in which the state may, consistent with the First Amendment, impose content‑based restrictions on pure speech and artistic expression. Nudity, without more, is protected speech. Period.

This teenager was arrested and was being prosecuted for engaging in a course of conduct that contained elements of speech and/or expressive activity.   For example, assuming He was charged with “sexual exploitation” the core of the conduct was the taking of the photograph — clearly a “pure speech” activity. Likewise, the “publishing” of the photos on her MySpace page should also be characterized as expressive activity entitled to First Amendment protections.   See, e.g., Hurley v. Irish‑American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (the Constitution looks beyond written or spoken words as mediums of expression);  Massachusetts v. Oakes, 491 U.S. 576, 591‑92, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) (Photography, painting, and other two‑dimensional forms of artistic reproduction … are plainly expressive activities that ordinarily qualify for First Amendment protection.)  (Brennan, J., dissenting); Bery v. City of New York, 97 F.3d 689, 695 (2d Cir.1996) (Visual art is as wide ranging in its depiction of ideas, concepts and emotions as any book, treatise, pamphlet or other writing, and is similarly entitled to full First Amendment protection); cert. denied, 520 U.S. 1251, 117 S.Ct. 2408, 138 L.Ed.2d 174 (1997).

In this case, as noted above, this kid’s course of conduct contained elements of pure speech and/or expressive activity, thus permitting him to invoke the First Amendment in challenging this prosecution.

Nevertheless, because legislation banning child pornography, like that prohibiting obscenity, regulates speech, it must be carefully crafted to limit its reach.   The conduct to be prohibited must be adequately defined, the prohibition must be limited to works that visually depict sexual conduct by children below a specified age, the forms of “sexual conduct” must be suitably limited and described, and criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Ferber, 458 U.S. at 764‑65, 102 S.Ct. at 3358‑59, 73 L.Ed.2d at 1127‑28. The production and distribution of descriptions or other depictions of sexual conduct by children, if not obscene and if not involving live performance or photographic or other reproduction of live performance, retain First Amendment protection.  Id. at 764‑65, 102 S.Ct. at 3358‑59, 73 L.Ed.2d at 1127‑28. I believe, The statute here extends to photographs of minors having no sexual or offensive content at all. Nor is the statute focused to proscribe only photographs that harm the child subjects.  Nevertheless, because legislation banning child pornography, like that prohibiting obscenity, regulates speech, it must be carefully crafted to limit its reach.   The conduct to be prohibited must be adequately defined, the prohibition must be limited to works that visually depict sexual conduct by children below a specified age, the forms of “sexual conduct” must be suitably limited and described, and criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Ferber, 458 U.S. at 764‑65, 102 S.Ct. at 3358‑59, 73 L.Ed.2d at 1127‑28. The production and distribution of descriptions or other depictions of sexual conduct by children, if not obscene and if not involving live performance or photographic or other reproduction of live performance, retain First Amendment protection.  Id. at 764‑65, 102 S.Ct. at 3358‑59, 73 L.Ed.2d at 1127‑28. From what I know, The photos at issue of this minor had no sexual or offensive content at all.  It’s certainly not described that way.  Numerous publications, like those of David Hamilton, Jacque Sturgis, Maxim, Gear and Jane Magazines, as well as movies like Pretty Baby, which depict nude children and young adults and are much mainstream and perhaps more provocative than the described photo taken by Rich.  Under Florida law apparently, Such images would be illegal when significant precedent exists to protect these images under the First Amendment.

Now, I could go on an rant and give you a seminar on First Amendment freedoms on this subject matter, but I won’t.  I don’t need every prosecutor out there looking into my law library and anticipating my next argument.