NH Supreme Court- Landmark First Amendment Victory

01/18/2008. Landmark Victory for Privacy and the First Amendment.

In State v. Zidel, 940 A.2d. 255 (Jan. 18, 2008), Theodore Lothstein won a landmark victory for the First Amendment ... and won his client's appeal, erasing his felony convictions and freeing him from a certain prison sentence.

The State prosecuted Zidel for possesion of child pornography, based on pornographic images of adult bodies engaged in sexual activity, that he collaged together with photographs of the heads/faces of minors he pasted unto the shoulders of the adult bodies.

Defendant never intentionally took these images outside the privacy of his own home or otherwise made them available to others such as posting them on the internet. Alas, when he inadvertently gave the wrong disk to the director of the very camp where he took the (innocent) photographs of the 15 year old girls, he found himself charged with possession of child pornography, seemingly on a one-way trip to state prison.

Here are the basic First Amendment principles: 1) distribution of "obscenity" is not constitutionally-protected; 2) private possession of "obscenity" receives absolute constitutional protection, and 3) child pornography is the sole exception to #2.

In a photo finish, a bare 2-1 majority of a three-justice panel of the New Hampshire Supreme Court derailed that train, ruling that the prosecution violated the defendant's right to free speech under the First Amendment.

Justice Duggan, writing for a majority that consisted of himself and Chief Justice Broderick, reasoned that the child pornography exception is based on the many ways in which child pornography harms children. Children cannot be harmed, however, by the private viewing of collages that do not involve the actual sexual exploitation of children and are not distributed into the community.

In reaching this result, the Court extended upon a landmark ruling of the United States Supreme Court providing constitutional protection to "virtual child pornography," (Ashcroft v. Free Speech Coalition), and in the process created its own landmark ruling. The majority only reached Zidel's as-applied challenge to New Hampshire's child pornography law, so it did not hold the law unconstitutional as a general matter.

Justice Hicks, dissenting, believed that extension to be unwarranted, because "morphed" or "composited" images, unlike virtual images, do involve a real child — at least the child's head, anyway.

For this victory, Ted thanks trial counsel Behzad Mirhashem and Don Topham of the Nashua, NH Public Defender's Office, who did an incredible job researching and presenting this difficult issue to the trial court, and preserving the issue for appellate review. Here's a link to more information about my friend Behzad, currently a federal defender in Boston... and a trial attorney extraordinaire - and physicist!

Note: The majority carefully limited its holding to images not distributed in any fashion. The message to would-be collage artists: don't put your creations up on myspace!

Read State v. Marshall Zidel