HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 1453 Sexually Explicit Material
SPONSOR(S): Judiciary Committee, Justice Appropriations Subcommittee, Criminal Justice & Public Safety
Subcommittee, Harding and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1798
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice & Public Safety Subcommittee 17 Y, 0 N, As CS Frost Hall
2) Justice Appropriations Subcommittee 14 Y, 0 N Smith Keith
3) Judiciary Committee 19 Y, 0 N, As CS Frost Kramer
SUMMARY ANALYSIS
With rapid advancements in audio-visual technology in recent years, both the federal government and many states
have created laws addressing the growing issues related to the misuse of such technology. In particular, many laws
are aimed at preventing the creation and dissemination of sexually explicit material including morphed child
pornography, sexually explicit “deepfake” images and videos of adults, and other unauthorized use of sexually
explicit images.
CS/CS/HB 1453 amends chapters 775, 784, 827, and 847, F.S., and creates new sections of law in ch. 836, F.S., to
address issues that have emerged as a result of rapidly advancing audiovisual technology. Specifically, the bill
makes the following changes:
 Altered Sexual Depictions: The bill prohibits a person from willfully and maliciously promoting an altered
sexual depiction of an identifiable person, without the consent of the identifiable person, when the person
promoting such altered sexual depiction knows or reasonably should have known that such depiction was an
altered sexual depiction. A person who unlawfully promotes an altered sexual dep iction commits a third
degree felony, ranked as a level 3 offense on the Criminal Punishment Code offense severity ranking chart
(OSRC).
 Sexually Explicit Images: Under the bill, a person commits a third degree felony, ranked as a level 4 offense
on the OSRC, when he or she: commits theft of a sexually explicit image (SEI); or willfully possesses with
the intent to promote a SEI for the purpose of pecuniary or other financial gain, when he or she knows or
should have known the image was stolen. Additionally, a person who willfully promotes a SEI for the
purpose of pecuniary or other financial gain, when he or she knows or should have known the image stolen,
commits a second degree felony, ranked as a level 5 offense on the OSRC.
 Child Pornography and Obscenity: The bill ensures that morphed child pornography is prohibited in Florida
by: expanding the meaning of the term “child pornography” to include any image that has been created,
altered, adapted, or modified by electronic, mechanical, or other means, to portray an identifiable minor
engaged in sexual conduct; and defining or redefining multiple terms relating to child pornography and
obscenity.
 Transmission of Child Pornography: The bill amends the definition of “transmit” to clarify that using file
servers or file sharing to transmit child pornography is prohibited.
 Sexual Cyberharassment: The bill increases the minimum monetary damages that a victim may receive as a
result of a civil action from $5,000 to $10,000.
 Child-like Sex Dolls: The bill increases the penalty for possessing an obscene child-like sex doll from a first
degree misdemeanor to a third degree felony.
The bill may have a positive indeterminate impact on prison beds by expanding the material considered child
pornography and creating new felony offenses for: promoting an altered sexual depiction; theft or unauthorized
possession or promotion of a SEI; and possessing an obscene child-like sex doll.
The bill provides an effective date of October 1, 2022.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
With rapid advancements in audio-visual technology in recent years, both the federal government and
many states have created laws addressing the growing issues related to the misuse of such
technology. In particular, many laws are aimed at preventing the creation and dissemination of sexually
explicit material including morphed child pornography, sexually explicit “deepfake” images and videos
of adults, and other unauthorized use of sexually explicit images.
Morphed Child Pornography
“Morphing,” which refers to a process in which a computer user distorts or transforms one picture into
another, is a relatively simple technique using inexpensive and readily available software. Individuals
use this technique to create “morphed” child pornography, consisting of images depicting sexually
explicit conduct in which an actual child’s head has been superimposed onto an adult’s body or onto
computer generated nude body parts.
Federal Law
Generally, the First Amendment does not protect child pornography. In New York v. Ferber,1 the United
States Supreme Court (Supreme Court) recognized that states have a compelling interest in
safeguarding the physical and psychological well-being of minors and in preventing their sexual
exploitation and abuse. The Supreme Court noted that it was “unlikely that visual depictions of children
. . . lewdly exhibiting their genitals would often constitute an important and necessary part of a literary
performance or scientific or educational work.”2 Under these principles, states have criminalized
possessing, distributing, and other acts involving child pornography. However, the constitutionality of
criminalizing such acts is less clear when the images at issue are morphed pornography.
Child Pornography Prevention Action of 1996
Prior to 1996, federal law criminalized a variety of acts relating to child pornography. 3 At that time,
federal statutes described images of a minor actually engaging in sexually explicit conduct. 4 In 1996,
Congress passed the Child Pornography Prevention Action of 1996 (CPPA), 5 creating a definition of
“child pornography” that for the first time criminalized acts relating to morphed child pornography. Under
the CPPA, “child pornography” was defined as:
(8) Any visual depiction, including any photograph, film, video, picture, or computer or
computer-generated image or picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct, 6 where:
(A) The production of such visual depiction involves the use of a minor engaging in sexually
explicit conduct;
(B) Such visual depiction is, or appears to be, of a minor engaging in sexually explicit
conduct (i.e., virtual child pornography – created without using an actual child);
1 458 U.S. 747 (1982).
2 Id. at 762-63.
3 See, e.g., 18 USC §2252 (1994 ed.).
4 U.S. v. Hotaling, 599 F.Supp.2d 306, 309 (N.D.N.Y. 2008); see also 18 USC §§ 2252 and 2256 (1994 ed.).
5 Pub. L. No. 104-208.
6 18 USC §2256(2) (1996 ed.) defined the term “sexually explicit conduct” as actual or simulated sexual intercourse (including genital -
genital, oral-genital, anal-genital, or oral-anal) whether between persons of the same or opposite sex; bestiality; masturbation; sadistic
or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person.
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 (C) Such visual depiction has been created, adapted, or modified to appear that an
identifiable minor7 is engaging in sexually explicit conduct (i.e., morphed child
pornography); or
(D) Such visual depiction is advertised, promoted, presented, described, or distributed in
such a manner that conveys the impression that the material is or contains a visual
depiction of a minor engaging in sexually explicit conduct. 8
Case Law Following the Passage of the CPPA
In 2002, the Supreme Court decided Ashcroft v. Free Speech Coalition,9 a case in which a California
trade association for the adult entertainment industry challenged section 2256(8)(B) of the CPPA as
unconstitutionally overbroad. Section 2256(8)(B) made it a crime to possess or distribute images
depicting sexually explicit conduct which could be created by using advanced computer imaging
techniques to “create realistic images of children who do not exist” (i.e., virtual child pornography). 10
The Supreme Court held that the speech criminalized in the challenged provision of the CPPA violated
the First Amendment since it extended the federal prohibition against child pornography to sexually
explicit images that “appeared to” depict minors but were “produced without using any real children.” 11
The Supreme Court decided that “by prohibiting child pornography that did not depict an actual child,”
section 2256(8)(B) of the CPPA “abridged the freedom to engage in a substantial amount of lawful
speech” and was therefore overbroad and unconstitutional. 12
While the Ashcroft decision did not specifically address the constitutionality of 18 U.S.C. 2256(8)(C)
(prohibiting morphed child pornography), it did note, in dictum, that “[a]lthough morphed images may
fall within the definition of virtual child pornography, they implicate the interests of real children…”13
This suggests that morphed child pornography is not protected by the First Amendment. 14
Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act
Congress attempted to remedy the constitutional issues raised in Ashcroft by passing the
"Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act” (Protect Act) in
2003.15 The Protect Act, in part, narrowed the definition of virtual child pornography in section (8)(B) of
the CPPA to include only virtual or computer-generated images that are “indistinguishable from” images
of actual minors engaging in sexually explicit conduct. 16
The definition of morphed child pornography contained in section 2256(8)(C) remained unchanged by
the Protect Act.
7
18 USC § 2556(9) (1996 ed.) defined the term “identifiable minor” as a person who is recognizable as an actual person by the
person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, an d: who was a
minor at the time the visual depiction was created, adapted, or modified; or whose image as a minor was used in creating, adapting, or
modifying the visual depiction. The term was not construed to require proof of the actual identity of the identifiable minor.
8 18 USC § 2556(8) (1996 ed.).
9 535 U.S. 234 (2002).
10 Supra, FN 8.
11 Supra, FN 9, at 256.
12 Id.
13 Id. at 242.
14 McFadden v. Alab ama, 67 So.3d 169, 181-82 (Ala. Crim. App. 2010).
15 Pub. L. No. 108-21.
16 18 USC §2256(8)(B).
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 Federal Case Law since the Passage of the Protect Act
To date, the federal statutes relating to morphed child pornography have been upheld. 17 In United
States v. Bach,18 the defendant was convicted of possessing morphed child pornography. The image at
issue showed a young nude boy sitting in a tree, grinning, with his pelvis tilted upward, his legs opened
wide, and a full erection.19 The photograph of a well-known child entertainer’s head had been “skillfully
inserted onto the photograph of the nude boy so that the resulting image appeared to be a nude picture
of the child entertainer sitting in the tree.”20 The defendant appealed, arguing that his conviction was
invalid because the definition of morphed child pornography violated the First Amendment. The United
States Court of Appeals for the Eighth Circuit disagreed, holding that morphed child pornography
“implicate[s] the interests of real children” and creates a lasting record of an identifiable minor child
seemingly engaged in sexually explicit activity.21 However, the court noted that:
Although there may well be instances in which the application of §2256(8)(C) violates
the First Amendment, this is not such a case. The interests of real children are
implicated in the image received by Bach showing a boy with the identifiable face of AC
in a lascivious pose. This image involves the type of harm which can constitutionally be
prosecuted under Free Speech Coalition and Ferber.22, 23
More recently, in United States v. Anderson,24 the defendant was charged with distribution of morphed
child pornography relating to an image in which the face of a minor female was superimposed over the
face of an adult female engaging in sex with an adult male. 25 The defendant moved to dismiss the
charge, arguing that the definition of morphed child pornography was unconstitutionally overbroad. 26
The court noted that the image at issue was different than the one in Bach in that “no minor was
sexually abused.”27 However, the court held that because such images falsely portray identifiable
children engaging in sexual activity, such images implicate the compelling governmental interest in
protecting minors.28 Using this reasoning, the court applied a strict scrutiny balancing test and held that
the definition of morphed child pornography was constitutional as applied to the facts of Anderson.
Florida Law
Under Florida law, “child pornography” means any image depicting a minor29 engaged in sexual
conduct.30 Florida law contains a variety of provisions prohibiting acts relating to child pornography,
including under ch. 827, F.S., relating to “Abuse of Children,” and ch. 847, F.S., entitled “Obscenity.”
17 United States v. Ramos, 685 F.3d 120, 134 (2d Cir. 2012), cert. denied, 133 S.Ct. 567 (2012); see also Doe v. Boland, 630 F.3d 491,
497 (6th Cir. 2011).
18 400 F.3d 622 (8th Cir. 2005).
19
Id. at 625.
20 Id.
21 Id. at 632.
22 Id.
23 United States v. Hotaling, 634 F.3d 725 (2d Cir. 2008), cert. denied, 132 S.Ct. 843 (2011) (citing Bach, the Court held that “child
pornography created by digitally altering sexually explicit photographs of adults to display the face of a child is not prote cted expressive
speech under the First Amendment.)
24 759 F.3d 891 (8th Cir. 2014).
25 Id.
26 Id.
27 Id. at 895.
28 Id. at 896.
29 S. 847.001(8), F.S., provides that “minor” means any person under the age of 18 years.
30 “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, m asturbation, or
sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed g enitals,
pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexu al desire of either party; or any act
or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breast feeding of
her baby does not under any circumstance constitute “sexual conduct.” S. 847.001(16), F.S.
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 Sexual Performance by a Child (S. 827.071, F.S.)
Section 827.071(4), F.S., makes it a second degree felony31 for a person to possess with the intent to
promote any photograph, motion picture, exhibition, show, representation, or other presentation which,
in whole or in part, includes any sexual conduct by a child. Possession of three or more copies of such
photographs, etc., is prima facie evidence of a person’s intent to promote.32
Section 827.071(5), F.S., makes it a third degree felony33 for any person to knowingly possess, control,
or intentionally view34 a photograph, motion picture, or other image that, in whole or in part, he or she
knows includes any sexual conduct by a child.35
The following definitions apply to the above-described offenses:
 “Child” means any person under the age of 18 years.
 “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer,
transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or
agree to do the same.
 “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals;
actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if
such person is a female, breast, with the intent to arouse or gratify the sexual desire of either
party; or any act