A Tennessee man faces charges of aggravated sexual exploitation of a minor. There were pictures of three different girls’ faces on adult bodies. One of the pictures appears to be Miley Cyrus, Disney star. The other two pictures are of local girls, a 10 and 12 year old. None of the pictures featured an actual child’s body. Investigators do not believe that the man had any contact with any of these girls. Officials say, having children’s faces on pictures of adult bodies indicate “simulated sexual activity”. This situation is very similar to State v. Zidell, 940 A.2d 255 (2008). The defendant in this case did the same as the Tennessee man who is being charged with virtual pornography. He took pictures of minors and placed their faces on images adult bodies. The New Hampshire Supreme court determined this was not child pornography because the minors were not victimized during the creation of these pictures. The defendant told the police that the sexually explicit “photographs were only his ‘personal fantasy’ and that they were not real.”

It will be interesting to find out the outcome of this case because, in 2002, The U.S. Supreme Court ruled that “virtual child pornography,” where no children were actually harmed, is protected speech and does not constitute a crime. In Ashcroft v. Free Speech Coalition, the US Supreme Court declared as unconstitutionally overbroad the comparable United States Statute, the Child Pornography Prevention Act of 1996, 18 U.S.C.A. §2251, et. seq., (CPPA). It found that the language of the United States Statute prohibiting depictions, including pictorial depictions of non but simulated minors or using non-minors who looked like minors as being beyond the ambit and power of the United States Congress, as constrained by the First Amendment to the United States Constitution. The word “Depict” means: (1) to represent by or as if by painting; portray; delineate. (2) To represent or characterize in words; describe.” Webster’s New Universal Unabridged Dictionary, 1996, Page 534. Clearly, the use of the word “depict” is to include virtual representations – characterizations, paintings, and portrayals. The Colorado statute uses similar definitions to that employed by the CPPA. The Colorado Statute similarly prohibits depictions and includes simulations. It does not limit itself to the use of actual photographs of children. It is equivocally overbroad.