Social media is a technological platform that is used by millions of people on a daily basis to post about their lives, businesses, and anything that comes to mind. Social media users openly share their life to others through their own personal accounts. Every day, while scrolling through Instagram or Facebook, a photo of a newly engaged couple, a proud graduate, and an adorable child pops up on one’s social media newsfeed. Personally, I love seeing photos of my family and friends’ beautiful growing children, especially during this pandemic, where it has been difficult to physically see loved ones due to social distancing requirements.

As many benefits as social media provides, it also has its shortcomings. Pedophiles are using photos of children that have been posted on social media accounts to create and share “morphed” child pornography. “Morphed” child pornography is the act of superimposing a child’s face onto the bodies of adults depicted in a sexually explicit manner. This image does not depict an actual child engaged in the act nor does it depict actual sexual abuse. Although the creation of the morphed image may not necessarily physically harm the child, it still causes psychological and reputational harm to the child. United States v. Hotaling, 634 F.3d 725, 730 (2d Cir. 2011).

In an attempt to better protect our children and to broaden the definition of child pornography, Congress enacted the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (“PROTECT Act”). The PROTECT Act makes the creation or distribution of child pornography illegal, “regardless of whether the material turns out to consist solely of computer-generated images, or digitally altered photographs of adults.”

Defendants have argued that the act of morphing images is a form of artistic expression and freedom of speech protected under the First Amendment. The Supreme Court has yet to address the issue of “morphed” images or the constitutionality of the PROTECT Act in this regard. As a result, there is currently a circuit split as to whether morphed child pornography falls within the First Amendment’s free speech protections. The Eighth Circuit has held that morphed child pornography is protected speech under the First Amendment.

Alternatively, the Second, Sixth, and most recently the Fifth circuits have held that morphed child pornography is not protected speech under the First Amendment.

The Supreme Court should uphold the PROTECT Act as constitutional in regard to morphed child pornography. Moreover, with respect to Florida law, Chapter 847 of the Florida Statutes does not criminalize morphed child pornography. Florida should amend its statute and define child pornography in a broader sense to include morphed images. In doing so, courts in future cases would find that these images are not entitled to the First Amendment’s free speech protections. Until then, parents or anyone else who shares images of children on their social media platform should be made aware of the potential risk of pedophiles taking these images and creating morphed child pornographic images. All in all, I encourage you to make your family and friends aware of this issue and to please think twice before you post a photo of a child on social media.