I was interviewed recently for an article about a Perez Hilton picture of Miley Cyrus. There’s something a little more interesting about this that I alluded to when I was talking to the reporter, but that didn’t come out as clearly in the article. If you’re simply looking for Perez Hilton/Miley Cyrus information, feel free to click the article; if you’re curious about one interesting legal issue with the situation, read on.
First, a bit of background. Miley Cyrus is 17, and she appears to be trying to present herself as an adult (in at least two senses of the word). As a part of this campaign, she apparently emerged from a car in a short skirt without any underwear on. Perez Hilton snapped a picture up her skirt that revealed what would have been hidden if she’d been wearing underwear.
Here’s the interesting point. Assume the image is pornographic (I haven’t seen it, so don’t have an opinion). If Miley Cyrus were, say 19, and this had happened, the interesting question would be whether Perez Hilton’s photograph was pornography, and, then, whether there was any redeeming social value to the image. Because Miley Cyrus has been spending a lot of time in the public eye displaying a more provocative image of herself, Perez Hilton could argue that his photograph was somehow a comment on that, and could probably argue successfully that it was a further conversation about Miley Cyrus and how provocative she is.
Here, though, Miley Cyrus is under 18, and the Supreme Court has held that a pornographic depiction of a minor is per se obscene. Which means that it doesn’t matter if Perez Hilton took the picture in order to comment on a pressing social issue; it can be banned based on the fact that it’s pornography and that she’s under 18 alone. Her status as a public figure is completely irrelevant to the analysis.
The interesting question is this – does that comport with our current understanding of how protective we should be of someone like Miley Cyrus? She’s already in the public realm in a pretty explicit way. At some point, when someone is so close to the age of majority, and is already a public figure, can they lose the protection that the Supreme Court clearly intends?
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