YouTube Felony Conviction Unconstitutional, Says First Amendment Expert

YouTube Felony Conviction Unconstitutional, Says First Amendment Expert

Foundation for Individual Rights in Education (FIRE) President Greg Lukianoff has protested Muskegon County's felony criminal charge of child pornography brought against 21-year old YouTube performer Evan Emory as "an overreaction and "at odds with Supreme Court precedent." Greg helped explain why local parents and prosecutors reacted as strongly did to the YouTube video, so much that they and the local prosecutor "liked the idea of throwing Evan Emory in jail for 20 years" with what he says was without true legal grounds.

YouTube Felony Conviction Unconstitutional, Says First Amendment Expert

Greg Lukianoff, President of F.I.R.E.

Disclaimer: The opinions stated in the interview are the opinions solely of Greg Lukianoff as a first amendment expert, and not the opinions of F.I.R.E (which only deals with higher education cases).

Greg, what comments would you like to make about the handling of the Evan Emory case by the prosecutor's office in Muskegon, Michigan?

While I can understand that parents would be angry that their children's images were used in a YouTube video featuring a lewd song, what Evan Emory did does not constitute child pornography. His prosecution is an overreaction and the charge of child pornography is at odds with Supreme Court precedent.

In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court made clear that while the government may prohibit child pornography "because of the State's interest in protecting the children exploited by the production process," it cannot constitutionally ban "virtual child porn" – for example, anime that sexualizes underage cartoon girls -- because such material is "is not 'intrinsically related' to the sexual abuse of children." Further, the Court observed that banning such "inappropriate" fantasy images was essentially banning "inappropriate" thought, pointing out that the Court had long "draw[n] vital distinctions between words and deeds, between ideas and conduct."

Child pornography does not enjoy First Amendment protection primarily because the act of producing it is rightfully considered a form of abuse. However, in a circumstance in which no children were present when the lewd words were sung, no children were depicted in a pornographic way, and no children were harmed, I cannot possibly see, nor can I imagine a judge upholding, this charge of child pornography.

YouTube Felony Conviction Unconstitutional, Says First Amendment Expert

As the Court noted in striking down the federal statute at issue in Ashcroftvirtual child pornography "do[es] not involve, let alone harm, any children in the production process" -- and neither did Emory's video.

If the parents wanted to punish Evan Emory for duping them, they might have done so by claiming that this was an unlawful appropriation of their children's images. However, those charges could produce damages at best. Instead, they seemed to be pursuing the child pornography claim primarily because they liked the possibility of throwing Evan Emory in jail for 20 years.

What would you say attributed to the situation creating such controversy?

YouTube Felony Conviction Unconstitutional, Says First Amendment ExpertI believe the case provoked such a strong reaction from the parents because they rightfully felt they had been misled as to what their children were participating in. I can fully understand parents who are uncomfortable with the thought of pictures of their children being broadcast across the universe via YouTube in association with a lewd song. If Evan Emory had been fully upfront with parents beforehand and let them into the joke, he could have avoided this whole situation.

The reason why this has taken off legally, however, is because it involves children. We have such a powerful instinctive desire to protect our children that sometimes all it takes is an age-old invocation – "What about the children?" – to prompt great overreaction and even irrational action. Here, parents and law enforcement relied on this theory to really stick it to Evan Emory, even though the punishment proposed was almost certainly unconstitutional.

Do you know of any other similar controversies involving students and YouTube? Any that have resulted in criminal prosecution?

YouTube scandals have come up, including this recent one at UCLA, but I have never heard before of a criminal prosecution related to satire on YouTube.

Evan's defense attorney informed me that he didn't want to seek the help of the Michigan ACLU because he believed that would have only made things worse for Evan. Your thoughts?

I think Evan needed all the help he could get, so he should have definitely thought about contacting the ACLU of Michigan and anyone else who could have helped him.

Some of the parents have expressed their intention to sue Evan Emory and his parents civil court for the video.

As I mentioned earlier, they might be able to make some kind of claim regarding the appropriation of their children's images, but I will not venture an estimate on the chances for success of such a claim.

What can an organization like FIRE offer to students and others who are content creators and sharers on YouTube, and may be at risk for situations like this?

Well, I think this is a pretty unique circumstance, but I'm certainly happy to offer help to students who are caught in free speech controversies. First, before you even set foot on campus read our Guide to Free Speech on Campus; then read our Guide to Due Process just in case you should ever get a call from a student conduct administrator. Finally, at the first sign that you might actually be punished for merely engaging in free speech, contact FIRE.

About Greg Lukianoff and FIRE

Greg Lukianoff is the president of the Foundation for Individual Rights in Education (FIRE) and has been with FIRE since 2001, when he was hired to be the organization's first director of legal and public advocacy. Greg is a member of the State Bar of California and the bar of the Supreme Court of the United States. Greg has published articles in The Los Angeles TimesThe Boston Globe, the New York Post,The Stanford Technology Law Review, The Chronicle of Higher EducationFraternal LawInside Higher EdReason, Free Inquiry, Congressional Quarterly, and numerous other publications. He is a blogger for the Huffington Post and authored a chapter in Templeton Press's anthology New Threats to Freedom, edited by Adam Bellow. Greg is a frequent guest on local and national syndicated radio programs, has represented FIRE on national television shows, including CBS Evening News, The O'Reilly Factor, MSNBC's Dr. Nancy, The Abrams Report, Hannity and Colmes, Stossel, Scarborough Country, and Buchanan and Press, and has testified before the U.S. Senate about free speech issues on America's campuses. In 2008 he became the first ever recipient of the Playboy Foundation Freedom of Expression Award and in 2010 he received Ford Hall Forum's Louis P. and Evelyn Smith First Amendment Award on behalf of FIRE.

FIRE is a First Amendment organization with the mission to defend and sustain individual rights at America's colleges and universities. These rights include freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience — the essential qualities of individual liberty and dignity. FIRE's core mission is to protect the unprotected and to educate the public and communities of concerned Americans about the threats to these rights on our campuses and about the means to preserve them. Check out their TheFIREorg YouTube channel and their website FIRE video library.

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