United States v. Jeffrey Anderson, 2014 U.S. App. LEXIS 13639

In June 2012 Jeffrey Anderson (M.A.’s half-brother) digitally superimposed an eleven‑year‑old girl’s face onto an image of adults engaged in sexual intercourse and sent the morphed image via Facebook to the girl’s account.
A federal grand jury charged Anderson with four counts: distribution of child pornography, distribution to a minor, production of child pornography, and enticement of a minor; the statutes define child pornography to include images “modified to appear that an identifiable minor is engaging in sexually explicit conduct.”
Anderson moved to dismiss, conceding his image fit the statutory definition but arguing the statute is unconstitutionally overbroad as applied to his morphed image (First Amendment challenge).
The district court denied the motion; Anderson entered a conditional guilty plea to distribution, reserving the right to appeal the denial of the motion to dismiss, and was sentenced to 120 months.
On appeal the Eighth Circuit reviewed de novo and considered whether the morphed image is unprotected child pornography categorically or, if protected, whether the statutes survive strict scrutiny as applied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether morphed image is categorically unprotected child pornography	Anderson: image is protected speech or statute is overbroad as applied	Government: morphed image creates a lasting record of an identifiable minor in sexual activity and is like traditional child porn (Ferber/Bach)	Court: cannot sustain categorical exclusion under Ferber/Stevens rationale; distinguishes Bach because no minor was abused in production; rejects categorical rationale for this image
If image is protected, whether statute satisfies strict scrutiny as applied	Anderson: statute not narrowly tailored; punishes private distribution and images that clearly show adult bodies with a superimposed minor face	Government: compelling interest in protecting minors from direct psychological/reputational harm from morphed images; no less‑restrictive means available to protect the child	Court: government showed a compelling interest and the application to Anderson was narrowly tailored; statutes constitutional as applied

Chaplinsky v. New Hampshire, 315 U.S. 568 (recognition of historically unprotected categories of speech)
New York v. Ferber, 458 U.S. 747 (child pornography categorically unprotected to prevent child abuse)
United States v. Stevens, 559 U.S. 460 (clarified Ferber; unprotected status tied to depictions produced by sexual abuse)
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (virtual child pornography decision distinguishing depictions not produced by abuse)
United States v. Bach, 400 F.3d 622 (8th Cir. 2005) (upheld conviction for morphed image where original depicted a nude minor)
Osborne v. Ohio, 495 U.S. 103 (harm from continued existence of child pornography)
Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (strict scrutiny standards for content‑based speech restrictions)