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Constitutional: Florida Legislature at It Again

Well, that is an understatement.  However, one of the proposed bills targets speech — speech which was specifically the subject of successful litigation of which I was a direct part of the legal team.  In approximately 2008, Jack Stelmack served as an elementary school principal in Lakeland, Florida.  Without getting too deeply into my belief that Stelmack was completely innocent, Polk County-based prosecutors successfully prosecuted Stelmack for child pornography charges — but relating to simulated child porn.

Now, in this case, the images in question stemmed from a nude, adult female body being pasted (and I mean the Elmer’s glue variety) to the head of a child.  The result was poor, and it would not — in any sense — fit into the definition of “child pornography” as set down by the United States Supreme Court in the Ferber and Ashcroft cases, which require that a real child be used in the actual creation of actual child porn.  In the Stelmack matter, this was simply not so, and the Second District Court of Appeal rightfully vindicated the First Amendment and threw out Stelmack’s prison term.

Now, some legislator from the Tampa area is attempting to criminalize this conduct, but under the “obscenity” label.  This raises some interesting questions, and has proven to be a separate matter of inquiry under federal law, especially in lieu of the Supreme Court’s decision in U.S. v. Williams, which — rather unbelievably — applied a completely different standard for simulated (aka, fake, fictitious, non-real) sexual acts involving virtual anime characters than the standard reaffirmed in Ashcroft for determinations of child pornographic depictions.

No, I am not advocating in any way for child porn.  To the contrary, I have dedicated several years to international efforts to deter child porn trafficking.  Rather, I am advocating for the principles behind the constitutional decisions made in Ferber and Ashcroft, and later misapplied in Williams.  Whether one likes it or not, adult speech equals protected speech under Our Constitution.  We need to respect the principles — we do not need to like or approve of the content protected by those principles.

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