I interviewed Amy Adler, New York University law professor and researcher on First Amendment Law, Pornography and Art, and Feminism Jurisprudence; and get her own opinion on the Evan Emory criminal case over a YouTube video. I asked Amy, can a coherent legal argument be made to show that clipping footage of children into a video with sexually explicit lyrics, and posting it on YouTube, constitutes child pornography? Or do new video technologies and emerging cultural attitudes require new laws?

We continue our coverage of Evan Emory, the 21-year old man in Michigan being charged with one felony count of “child abuse as a commercial activity” for an edited video he posted on YouTube of himself appearing to sing a sexually explicit song to first-grade students. (You can learn more about this case and interviews with people involved in ReelSEO’s Video and the Law column.)

Amy Adler, NYU Professor of Law

Since the local DA’s office charged Emory with “child sexually abusive activity or material” (in essence, child pornography), I thought it would be best to have an law professor with expertise in this field give an expert opinion. Professor Adler has not seen the actual video, which is under restricted viewing by the prosecutor’s office. However she has followed the description of the video in news reports, and reviewed the Michigan penal code on child pornography. (All statements in quotes are from Professor Amy Adler in our interview.)

Watch the following video of Professor Adler speaking on “The Law and Culture of Child Pornography” at the recent Chicago Humanities Festival. (Professor Adler’s presentation starts at 39:54 in the video.)

“Child Pornography Is Not the Right Fit” for YouTube Video

Is there any coherent argument to be made that Emory committed a crime? Is it child pornography, or something else?

“I have some sympathy for the parents who are upset in this case without question.  And I have to say, I’m a mother and I would not like if somebody did this to my child.  And I think there may be some avenue for criminal prosecution although I’m not sure what it may be.  Whatever it would be, it seems clear to me, child pornography is not the right fit for this crime; if there is indeed a crime.  Or, not the right fit for what he did.”

How A Local County Could Trump the U.S. Supreme Court

Since the U.S. Supreme Court has already ruled that virtual images of children used in a sexually suggestive manner in and of itself does not constitute child pornography, how would a prosecutor plan to win this case on these charges?

“Michigan would be going beyond what the Supreme Court has so far allowed. Perhaps the Supreme Court would agree that extension should happen, but it is out in front of where I think constitutional law is right now, under child pornography law.

Legislatures are going as far as they can go. I think the best-case scenario for the Michigan prosecutor is that this goes all the way to the Supreme Court and the Supreme Court goes, ‘you’re right,’ then they can push child pornography law even farther then our cases have so far indicated.  It’s happened before.

That’s how child pornography law got invented. The legislature drafted a law and everybody said this has to be unconstitutional under existing law, and the Supreme Court said actually we’re going to create a whole new First Amendment Doctrine around this.”

How YouTube Confuses Child Pornography Laws

So how does this YouTube video apply with any prosecution for child pornography?

“To the extent this is a child pornography prosecution – having not seen the video – I guess it’s presenting real children in a context that is somehow sexual. The primary aim of the child pornography law is to protect children from being sexually abused. Although these children may have been intruded upon in a way that we find repugnant, they were not sexually abused. They were presented in a sexual light, I think from what I’m understanding of the video (having not seen it, personally.)

The premise of the child pornography law is when you have abused a child sexually to produce an image of that; and the image perpetually haunts the child and reminds him of this terrible abuse. Clearly that’s far afield from what happened here.

It sounds like there’s a gap in the law as it exists between wanting some kind of crime for this activity on the books, but current laws aren’t cutting it, maybe?

is a kid. In any event, although what he did seems wrong, it doesn’t seem to be wrong in the sense that child pornography is wrong.  That’s a whole different story.”

Digital Youth Culture, YouTube, and the Shock Culture Mentality

It sounds like a moral code has been seriously breached with this YouTube video. Many of the parents whose children were featured in the video are very angry, with a lot of them wanting him to be seriously punished.

“I would be angry at the school, If I were one of the parents.  I think there’s an interesting point you raised in that what we are seeing in this case and other examples of prosecuting teenagers… I think its something of a generational divide as well.  We are living more and more in a culture, or teenagers are living in a culture that is completely digital, completely visual, and also a culture in which trying to shock people, like on YouTube, is rewarded and normal.

There are a lot of aspects of pop culture that seek to shock us and push the envelope and this fits into that.  But I also do think that there is something about this that fits into youth culture and that desire to have the sickest video go viral on YouTube, you know?

If you’re a young person, the last thing you are thinking about is getting arrested.  So it’s another place where cultural norms, or kind of teen social norms seem in conflict with the law.

Why Old Laws Don’t Always Apply to YouTube Activity

It seems that the Muskegon County Prosecutor’s office didn’t really have a proper fit for what to charge Emory with; and at the same time they wanted to make an example out of him, so they went after the “big” charge of child pornography.

“Well in this case, what’s making it hard for me to figure out is, I don’t know how to describe…I’m not sure what to prosecute this kid under.  I just know it’s not child pornography law.  I don’t see the fit with this law and that’s as far as I can take it.  Maybe there’s some invasion of privacy or false light, or something like that that he’s done, but it’s not, in my view, this is not what child pornography law was meant for.

The legal charge seems to be a misfit both with what he did and also with existing child pornography jurisprudence.”

Rant: How Can Laws Be Created That Match “YouTube Crimes?”

It’s entirely possible that the local prosecutor’s office may switch their charge to something of a misdemeanor, under any potential plea agreement. It’s fair to argue that the younger generation has a different mentality around YouTube for shock value, rather than what’s being ascribed to by the older generation in authority as any criminal motive (or an actual crime under existing law).

Perhaps a new law that’s more reflective of this type of behavior should be drafted in legislatures that reflect both a level of generational understanding and appropriate punishment. On the criminal side, it can involve exploiting children for prurient interests, provided that something was staged and recorded without a parent’s consent.

But being quick to apply the extreme labeling and charges of child pornography in this case, only appeals to moral outrage, which the younger generation and outsiders find to be not just misplaced, but hypocritical with the mixed messages that pop culture an the older generation continuously sends. The absence of a proper law for bad behavior should not allow for the lazy solution of inserting a much harsher law, like it appears to have been in this case.