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All involved are over 21. Person A has a picture of Person B and photoshops the head of Person B onto a nude body image. Person A then posts the nude picture with Person B's head attached onto Person A's Facebook page.
Do you think this would fit 42.07(a)(1)? Any other ideas?
Doesn't fit the definition of "obscene" for 42.07(1)
Maybe 43.22. Just a class C, but it is something.
What about 32.51, fraudulent use of identifying information?
Doesn't seem to fit the definition of identifying information in 32.51, does it? Unless your face is unique biometric data. The examples of biometric data in the definitions are more unique than a face--identical twins have nearly unique faces, but not fingerprints, retina pints or irises.
Check out 33.07
My first response to this is, you've got to be kidding me, right? Is this a serious question?
My second response was to almost cry because, in reading your post and the other responses, I could see that you guys were completely serious.
Before answering your question I would ask you this: Could you actually stand in front of a jury with a straight face and ask them to put someone in jail for this? And what do you think would be the reaction of your community should you even try? There is absolutely no way any defense attorney would risk disbarment by telling his client to take a plea.
As David Higgison once said in a prior post on a similar topic (FB and online impersonnation):
The job of the DA is not to be glorified babysitters or life coaches.
That being said, no, it is not against the law. It is protected speech under the 1st Amendment. If a person can LEGALLY cut & paste the photos of children onto the naked bodies of adults, they can certainly do so with the faces of adults onto the bodies of other adults. See State of New Hampshire v. Marshall Zidel http://www.courts.state.nh.us/...ns/2008/zidel005.pdf
A defendant could easily argue that this kind of thing is parody, which we all know is protected speech. And then your office would get to decide who would be paying the judgment on the forthcoming civil rights lawsuit should you try to arrest and prosecute.
Again, it truely breaks my heart to read your post and the responses made by those above. It is not the job of law enforcement to protect us from all the jerks and unpleasentries of life.
It "truely" breaks my heart to see a UT law student citing to a New Hampshire Supreme Court case as binding precedent in Texas.
I do agree with Molly on one point, as most of us would: it is not the DA's job to be glorified babysitters or life coaches. But that still does not address the issue raised by Rob.
That NH case cites about 7 or 8 different US Supreme Court decisions in their opinion. Plus, its not like there is a lot of case law out there on this subject of putting faces onto naked bodies. Just doesn't come up very often. (using Google this was the only case I could find)
I used the NH case because it dealt with child porn / kids' faces on the naked bodies of adults. Thus, that is obviously a much more serious matter than Rob's case of adult faces on adult bodies. My reasoning being, if it is okay to put children's heads onto naked bodies than it also must be okay to put adult heads onto adult bodies.
Plus, I tossed out there the 1st Amendment protection that parody enjoys to further support my position. Which I thought would have been obvious to all.
That is how I reached the conclusion that it is absolutely ridiculous for anyone to consider any type of criminal charge for this kind of thing. And the reason why this made me so sad is that this type of thing is so obviously not a crime. I found it extremely upsetting and outrageous that anyone could seriously propose a felony Identify Theft charge or obscenity case, or even the felony Online Impersonation statute (that specifically deals ONLY with the making of fake FB pages and not fake FB photos). Its like, what in the world are you guys thinking?? kind of thing.
James seems to have identified the closest thing addressing this sort of conduct in spirit and practice. Nothing popped out in the TDCAA Texas Crimes volume, and the other provisions mentioned don't reach the conduct for the reasons already noted.
Of course, contrary to Molly's slightly overwrought observation, sec. 33.07 does embrace more than the creation of fake webpages: it also covers WWW messaging. Perhaps there is a message trail?This message has been edited. Last edited by: John A. Stride,
Welcome to our public forums! I'm glad you've decided to join these conversations. But let me give you some advice if (as you claim on your profile) you wish to be as a prosecutor after law school:
(a) If you find legal discussions like this one "extremely upsetting and outrageous," you need to grow a thicker skin. Discussing what the law does and does not permit is the first step in deciding what CAN be done in a case; only once that is determined can a prosecutor determine what SHOULD be done. Prosecution is not an ends-justifies-the-means calling; please don't treat it as such.
Well, it's like, they are doing the same thing prosecutors do every day in gathering relevant information and advice before taking an action that may affect people's lives, and if like, you can't see this for what it is, then, like, maybe you should re-assess your choice of professions, because these are exactly the kinds of things you'll have to do every day in that job, and if you take the attitude you've shown as a new poster here into your new job, where you have to deal with victims and officers and voters on a daily basis, you're going to have a short career.
So how about we hit the reset button and you try to make your comments constructive? Because those are always welcome.
Thanks for joining our community and contributing to the dialogue.
Ok, a few things:
1) First Amendment only protects posession of the items described in the NH case, Molly, not distribution.
2)Parody as a defense in a criminal action? Hmmm. Never heard of that. Doesn't mean it isn't possible, just never heard of it.
3) If parody can be a criminal defense, what is being parodied here? Or, put another way, do you know the definition of parody?
4)Because the facts don't support conviction under one statute does mean a different statute would not work.
5) ***Pay particular attention to this one*** a defense lawyer having an argument, even a compelling one, should not be the deciding factor on whether to prosecute.
and,finally,6) "Plus, its not like there is a lot of case law out there on this subject of putting faces onto naked bodies. Just doesn't come up very often. (using Google this was the only case I could find)." A law student using Google for research rather than West or Lexis????
<<now now, be nice. -Admin >>This message has been edited. Last edited by: Shannon Edmonds,
I'm going to take up for Molly on the issue of parody for a minute...it is my understanding that parody is a defense to copyright (and other intellectual property violations) because it is protected speech. Otherwise, I would be in a world of hurt. At the risk of public humiliation, I present exhibit 1 (which you are free to ignore):
(I do understand your points about parody being - or not - a criminal defense. I've never seen it either.)
Jem - Why parody is a defense. Several posters above mentioned a couple of possible criminal charges for the head pasted onto naked body complaint. Identity theft. Obscenity. And online impersonnation. Yet to all of those charges there is but a simple defense.
Defendant: "My conduct was protected speech on account of I was just trying to make fun of the person."
All these proposed offenses require intent as a part of the elements. But if my intent was to make fun of someone, than what crime has been committed?
If you really are planning to enter prosecution, Molly, I applaud you for exercising your skills in anticipating defenses. I think the gravamen of the exchanges above indicate accurately that this forum is intended, among other things, for prosecutors to vet ideas on whether certain facts fit within a statutorily-defined offense and whether that analysis yields a case worthy of prosecution. "I disagree with your assertion because ..." generates lively debate and is to be encouraged. "Are you kidding me?" comes across as dismissive or, worse yet, condescending, and is sure to be less constructively received.
I would note that while parody might stand as a viable defense in an intellectual property case, that does not make it a universal immunization from other legal consequences. For instance, where a non-public figure's identity or private facts are appropriated and publicly disclosed, I am not sure I agree that a First Amendment-oriented parody defense would succeed in an invasion of privacy action. Here, I acknowledge we are discussing potential criminal charges, not a civil action. And that is the point the posters above are making.
One may have a First Amendment right to parody (even in bad taste) someone else. But that does not give one carte blanche to use someone else's identity or persona in any manner desired. I don't know that I see a criminal offense here, but if the facts suggested manipulation in a manner that made the end-result child pornography, for example, assertion of a First Amendment defense is likely to fall flat.
With all that said, welcome to the forum. I look forward to your participation in constructive debate in the future.
Was that you in the hat, Gretchen?
I plead the Fifth.
It was actually Manti Te'o's girlfriend.
The discussion has gotten a little off topic, but how much experience does anyone else have dealing with 33.07? I ask because I have complaints come up unfortunately frequently from facebookers demanding someone be put in jail or they need a protective/restraining order to prevent this other person from posting about them on facebook.
I read 33.07(a) to be more of a situation where offender creates something like a fake facebook page or sends messages as if they are the victim, making it appear as though it is the victim's doing. It appears as if the message was sent through an electronic mail program, which I would guess would be like a hotmail or gmail, or on a message board, it would not apply. I don't think any of that really fits the fact pattern set forth here.
(b) deals with referencing a name, domain address, phone number, or other identifying information (as prescribed by 32.51). I don't think a face counts as identifying information. And although the identity of Person N may be identifiable from parts other than the face, I don't believe that falls under identifying information, either. However, my question here is what is meant by "name"? Are we talking about the person's real name, a username, unflattering nicknames, or all three?
Also, would I be out of line to suggest instead of running to police or prosecutor, the "victim" take such drastic actions as defriending or unfollowing the offending user and simply ignore them? I have yet to see anything that really fits what I would consider cleanly within the statute with the exception of one case where a girl created a fake facebook page to "get even" with another girl for stealing her boyfriend.
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