When is child pornography virtual?

Recently, in U.S. v. Hotaling, a federal appeals court in the Second Circuit upheld the child pornography conviction of a man who superimposed the faces of teenage girls onto sexually explicit photographs of nude adults and stored them on his computer. The Court held that the pictures, although digital alterations, were not expressive free speech protected under the First Amendment. Hotaling tried to argue that no minor were actually harmed in the production of the photos, but the Court said that the minors were still at risk because the pictures showed the faces of the girls, and therefore they were identifiable. The Court also cited the fact that the pictures had been formatted for possible internet distribution.

I think it is pretty safe to say that most people agree that child pornography should not be protected as free speech, but this case illustrates the FINE LINE that is drawn in these kinds of cases. In my never-ending question for the LINE that is drawn between protected and not protected speech, I think this case raises some really interesting issues.

I agree with the ruling, particularly because the faces of the six girls allowed them to be identified. It is also true however, that outside use of pictures of their faces, there was no any actual harm done. The U.S. Supreme Court previously ruled in Ashcroft v. Free Speech Coalition that computer generated images of child pornography was protected because it did not harm any children through its production and existence.

The question then, is how do we decide the difference between virtual and non virtual The sticking point in this case seems to be the fact that real pictures were used, but what if the guy had used cartoon bodies with real faces, or vice versa? And what if they were real pictures, but nobody could identify the minors, or they were never distributed?