Salon, apparently a classy website, describes it thusly in its story:
The facts as we know them: On Sunday, Hilton's Twitter account sent out the following message: "If you are easily offended, do NOT click here http://i46.tinypic.com/2rze4pv.jpg Oh, Miley! Warning: truly not for the easily offended!" The photo in question has since been yanked down, but the image is allegedly of Cyrus climbing out of a car wearing a dress and no underwear (according to EarSucker.com, this is a censored version of the image in question). Now, Hilton has posted upskirt shots before of Britney Spears -- but Cyrus is roughly five months short of her 18th birthday. She's still a minor and it's legally considered child pornography.Pause for a second. A photo of a 17 year-old girl getting out of a car while not wearing underwear, so that her naughty bits are visible, is considered child pornography. That I can understand. And no one's in favor of child pornography. But surely Mr. Hilton can't be regarded as a child pornographer for merely linking to the image, can he?
Jeffrey Douglas, a Los Angeles criminal defense attorney who specializes in child pornography cases, told Salon that Hilton's liability is "extraordinary and intense" and that it was "suicidal for him to do this." He added: "We're not talking about a misdemeanor. You don't have to know what the definition of the law is; all you have to do is knowingly distribute the photograph" -- which Hilton, or someone with access to his Twitter account, most certainly did. It doesn't matter much whether Hilton took the photo, owns the photo or published the photo -- as long as he knowingly distributed the link.Whhhaaaattttt? Linking to a photograph on the internet is considered the same as distributing it?
How far does that liability extend? Think about that question for a minute because I'm going to come back to it.
In the meantime, back to the Salon story:
Some are speculating that the image was Photoshopped -- so, what then? "Under the law, that is still a crime and it is punishable just the same," says Douglas. "For instance, if you were to take the face of an 8-year-old and put that picture on the nude body of even an identifiable, fully developed adult porn star, it is child-porn punishable identical to if you took a photo of the actual child." What's more, depending on how the image is presented, there is the potential for the shot to be considered child porn even if Cyrus is actually wearing form-fitting underwear; in fact, Douglas says there has been debate in the past over similar images Hilton has published of Cyrus.If a person were to photoshop Ms. Cyrus's face on a photo of the body of Sasha Grey being DPed (I don't know who Sasha Grey is, and I don't know what "DPed" means), that is considered punishable to the same degree as if you'd actually taken photos of Ms. Cyrus's naughties? Or even wearing "form-fitting underwear"?
Are you kidding me?
What about the book Lolita? That depicts a sexual relationship between a very old man and a pre-pubescent girl. I actually own a copy of that book -- do I own child pornography? Or does this only apply to photos?
Is the mere description of the photo Mr. Hilton linked to illegal? Is the Salon.com article considered child pornography?
As you're considering these questions, let's get back to that "how far does this liability extend" question I asked earlier. Please cast your mind back a few weeks to the middle of May, when Ms. Cyrus was burning up the internets thanks to a video of her being groped by the man who produced her movie, The Last Song.
As I wrote at the time:
The video pretty plainly shows the 44 year-old Mr. Shankman groping the 16 year-old Ms. Cyrus, and then the two wandering off the dance floor where Mr. Shankman takes a seat, and Ms. Cyrus continues rubbing.When an adult man rubs his genitals against the buttocks of and gropes a 16 year-old girl, isn't that considered molestation? Wouldn't a video that showed such an incident be considered child pornography? And wouldn't the linking to a video featuring said groping and rubbing be considered prosecutable in the same way that linking to the alleged upskirt photo would?
That is, of course, if anyone decided to actually prosecute the man who actually did the molesting that was captured in the video (if that's what it was -- I'm no lawyer, so I don't know).
*UPDATE WED 5/16/2010 @ 3:25 PM PST
I think I was a little confused when I first wrote this post. Apparently, Mr. Hilton posted the picture himself to his twitter account, and then linked to it.
As you’ve no doubt heard, disfigured pedophile Perez Hilton posted an uncensored up-skirt picture of Miley Cyrus on Sunday, and although he quickly took it down and never reposted it, he claims it was perfectly okay for him to post it the first time. He also claims that he and Miley heart each other and this was all in fun LOL!So, yeah, that's worse. I mean, I can understand why someone would consider that to be "distributing" a picture.
But did he take the picture, I wonder? Is the photographer (who, presumably, "distributed" the picture to Mr. Hilton) considered equally culpable?
And why is photoshopping a picture considered the same as taking a picture of an underaged person's naughties? Or even an underaged person's form-fitting underwear-covered naughties? There is much about the law that seems out of proportion to me.
I'm also still confused as to why no action has been taken against the producer of Ms. Cyrus's movie, the guy who groped her in that disturbing video. If they go after Mr. Hilton, they ought to go after Mr. Shankman as well.
That of course does not excuse my misunderstanding of the posting vs. linking issue, for which I apologize.