- Associated Press - Thursday, July 17, 2014

OMAHA, Neb. (AP) - A federal appeals court ruled Thursday that a Nebraska man convicted of distributing child pornography when he sent a photo showing the head of an 11-year-old girl on the nude body of an adult woman did not have his free speech rights violated.

Jeffrey Anderson, 28, of McCook, was sentenced last year to 10 years in federal prison for the case of child pornography “morphing,” or digitally editing images into a pornographic picture. Prosecutors said Anderson sent the picture, which depicted the morphed image of the girl having sex with a man, to the girl via Facebook.

Anderson appealed the trial court’s refusal to dismiss the distributing child pornography charge against him, arguing that the federal child pornography laws applied in his case violated his constitutional right to free speech. Anderson argued that because no minor was sexually abused in producing the image, he should not have been charged with making or distributing child pornography.

Prosecutors countered that Anderson’s case was no different from a case in which the appeals court held that a morphed image of an underage boy’s head on a different underage boy’s nude body constituted child pornography.

A three-judge panel of the 8th U.S. Circuit Court of Appeals dismissed that argument by prosecutors Thursday, citing a 2010 U.S. Supreme Court ruling that clarified child pornography as unprotected speech when it involves visual depictions produced through sexual abuse of children.

But the appeals panel also found that the government’s need to protect the girl trumped Anderson’s free-speech argument.

“Anderson’s distribution targeted (the girl) through her Facebook account, and the image suggested her involvement in sexual intercourse as an 11-year-old child,” Judge Steven Colloton wrote for the panel. “There was no less restrictive means for the government effectively to protect this child from the exploitation and psychological harm resulting from the distribution of the morphed image than to prohibit Anderson from disseminating it.”

Anderson has the option of requesting the panel to rehear his case or petition to have the full 8th Circuit hear his appeal.

Anderson’s federal public defender was out of the office Thursday and did not immediately return a phone message seeking comment.


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