Court: Child porn is more than nudity

To be considered child pornography, a photo must show an act of apparent sexual stimulation or gratification, the state Court of Appeals said Tuesday, setting aside the conviction of a man who had a photo of a naked child on his cell phone.

"Depictions of nudity, without more, constitute protected expression," the Appeals Court said in a 13-page decision written by Judge Harriet Lansing and also signed by judges Terri Stoneburner and Matt Johnson.

The court reversed the Clay County District Court conviction of Gary Lee Johnson on one count of possession of child pornography.

The image at issue was of an 11- or 12-year-old girl, identified in court papers only by initials. The court said the girl was "lying down completely naked, and her arms are supporting and making contact with her naked breasts... (The child) does not herself appear to be sexually gratified, and her expression is almost a frown." The photo showed only the upper part of the girl's body.

The image surfaced when the girl asked another person to photograph her and a friend with a cell phone that had belonged to Johnson. The photographer found the photo of the unclothed girl and turned the phone over to the Moorhead Police Department, which determined that the image had been sent to Johnson's new cell phone.

Johnson admitted transferring the image and was found guilty in District Court. The facts of the case were not in dispute, but the definition of child pornography was.

The Appeals Court said the U.S. Supreme Court has held that material that isn't obscene or the product of sexual abuse is protected by the First Amendment. Criminal offenses for child pornography must be limited to those that "visually depict sexual conduct by children below a specified age," the court wrote, again citing a U.S. Supreme Court decision.

Johnson argued that the image didn't depict sexual conduct. The Appeals Court agreed, saying that "the physical contact between [the girl's] forearm and breasts is not part of an act of sexual stimulation or gratification."

Lansing wrote that if legal prohibition included images that don't depict sexual conduct, fashion or fine art images would be prohibited if they used models under age 18 who appear seductive. Similarly, she said "family images of naked children could be banned if they were perceived as alluring."

The lower court interpreted the law more broadly to include stimulation or gratification experienced by the viewer and determined that was why Johnson possessed the image, according to the ruling. But Lansing wrote that the law penalizes possession of depictions of specific conduct, not the response of the possessor.

While other images on Johnson's phone were "deeply troubling" and might be the basis for other legal action, those images cannot be considered when ruling on the one in question in this case, the court said.

Assistant state public defender Benjamin Butler said, "My client and I are pleased with the ruling."

Rochelle Olson • 612-673-1747