Stephen Shoemaker v. Robert Taylor, 730 F.3d 778

Background

Shoemaker was convicted in California court of eight misdemeanor counts of possession of child pornography under § 311.11(a) and one misdemeanor count of duplicating under § 311.3; sentenced to custody, probation, fines, and life sex-offender registration.
Evidence consisted of eight images seized from Shoemaker's Beachbaby and Blowout servers, with six images on Beachbaby and two in a Beachbaby subdirectory later copied to Blowout.
Exhibits 3,5,7,9,12,13 were nude children; Exhibits 8 and 14 were claimed morphed images of children engaging in sexual activity.
Trial court instructed with Dost factors to assess lewdness/lasciviousness and allowed consideration of context and website placement in evaluating whether images are child pornography.
Prosecutor argued that placement of images on Beachbaby (an adult site) turned innocuous images into child pornography; defense raised First Amendment concerns.
On federal habeas review under AEDPA, district court denial followed; the Ninth Circuit affirmed, addressing First Amendment and due-process challenges with deference to state court rulings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are Exhibits 3, 5, 7, 9, 12, 13 child pornography under Dost factors?	Shoemaker contends these nude images are innocuous and protected speech.	Taylor argues images meet lewd/lascivious criteria per Dost and Ferber.	Images are child pornography; not protected speech.
Are Exhibits 8 and 14 morphed images protected by the First Amendment?	Shoemaker argues morphs should be protected; no clear Supreme Court rule against morphed images.	Taylor asserts morphed images implicate real minors and fall outside First Amendment protection.	Under § 2254(d), state court reasonably rejected protection; morphed images fall outside protected speech.
May the context in which images were displayed be considered to determine child pornography?	Shoemaker says context cannot drive the determination; Free Speech Coalition controls.	Taylor argues some context may be relevant; the state court applied Free Speech Coalition sufficiently.	Context cannot be the sole basis, but the state court’s instruction was not unreasonable; prosecutorial error acknowledged.
Was the prosecutorial error harmless, given the context and evidence?	Prosecutor’s emphasis on Beachbaby context violated Free Speech Coalition.	Error was harmless given multiple Dost factors supported each image.	Harmless error under Brecht/Fry; no substantial impact on verdict.
Was the evidence sufficient to support the convictions on possession and duplication?	Sufficiency challenged as to linkage between images and defendant's control.	Evidence linking Beachbaby/ Blowout servers and folders to Shoemaker was strong.	Evidence sufficient to sustain both possession and duplication convictions.

Key Cases Cited

New York v. Ferber, 458 U.S. 747 (1982) (upholds criminalization of lewd exhibitions involving minors)
Osborne v. Ohio, 495 U.S. 103 (1990) (not every nude photo of a child is obscene; lewdness exceptions exist)
United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (six-factor test for lewdness/lasciviousness used to assess child pornography)
Hill, 459 F.3d 966 (9th Cir. 2006) (Dost factors applied in evaluating depictions of nude children)
Free Speech Coalition, 535 U.S. 234 (2002) (context cannot be sole determinant; prohibits turning on presentation; allows some contextual analysis)
Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984) (establishes narrow limits on unprotected speech categories; independent review advised)
Jackson v. Virginia, 443 U.S. 307 (1979) (reasonable-doubt standard for sufficiency of evidence)
Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless-error standard in collateral review)
Williams v. Taylor, 529 U.S. 362 (2000) (AEDPA deference; clearly established federal law)
United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) (affirmation of Dost test in the Ninth Circuit)