Up-Skirt Picture of Teenaged Celebrity Raises Fears of Child Pornography Prosecution

June 21, 2010 by David S. Seltzer

If you follow celebrity gossip, you may have heard about an incident last week that caught my eye as a South Florida cyber crime criminal defense attorney. As CNN reported June 21, celebrity blogger Perez Hilton caused a minor scandal last week when he posted a picture of 17-year-old celebrity Miley Cyrus that appeared to show the view looking up her skirt. Observers suggested that Hilton could be charged with child pornography crimes because he posted the photo to his Twitter feed. News reports say no charges are filed or planned against Hilton, and Cyrus and her father, singer Billy Ray Cyrus, say they’re not interested in a prosecution. But Hilton has lost at least two advertisers from tweeting the picture, including ABC, whose corporate parent Walt Disney owns Cyrus’s Disney Channel show.

It’s not clear whether the picture showed anything that could be considered pornography. The picture, which came from an outside paparazzi photo agency, was blurred or pixellated in the area that might have shown whether Cyrus was wearing underwear, and Hilton has claimed that other pictures show underwear. Regardless, critics say Hilton could face child pornography charges for publishing the picture, because Cyrus is 17 and not legally an adult. Hilton later removed the photo from his Twitter feed, saying he likes to be controversial, but does not want to go to jail. Defending himself on a talk show, he said the picture does not show anything inappropriate and is definitely not child pornography. He claimed he posted the picture to criticize the “unladylike” and overly adult behavior he believes Cyrus has displayed lately.

This situation is interesting to me as a Fort Lauderdale child pornography criminal defense lawyer for several reasons. If the picture was indeed pixellated in the appropriate area, I do not believe that Hilton or any other publisher can be prosecuted for distributing child pornography. Federal law defines child pornography as any image showing a minor engaged in sexually explicit conduct. An up-skirt picture is certainly invasive and tasteless, but it’s hard to justify calling getting out of a car without panties as sexually explicit conduct. More importantly, blurring the picture clearly shows an intent to avoid showing anything that could be considered sexually explicit.

However, I do not believe other defenses raised by Hilton would help him if he were prosecuted. In the media, Hilton has repeatedly pointed out that Cyrus has been acting very sexual and adult for her age and has done “unladylike” things. He also pointed out that she’s 17, which is just a year short of legal adulthood. These things may be true, but under the law, they don’t matter at all. If a picture meets the definition of child pornography, it wouldn’t matter whether the child depicted is 17 or 7 -- both ages would meet the legal definition. A jury would undoubtedly see a picture of a 17-year-old as less shocking than a picture of a younger child, which could help Hilton in any hypothetical prosecution. But the bad or experimental behavior of the child in the picture would also not matter, and might even backfire if it’s perceived as blaming the victim.

This controversy underscores some of the issues important to my practice as a Miami child pornography criminal defense attorney. In real life, the difference between 18 and 17 is sometimes hard to see, especially when the person in question behaves in a sophisticated and adult way. But when it comes to criminal law, that distinction makes the difference between criminal charges and legal behavior. (Celebrity watchers may recall similar photos of Lindsay Lohan and Britney Spears that did not create rumors of criminal prosecution.) In cases where that line is blurred and the defendant made the wrong judgment, a lot depends on the sympathy of the jury. Unfortunately, some people will always react strongly to child pornography charges, regardless of the underlying situation -- which is why it’s essential to have an experienced defense lawyer by your side.