A federal appeals court upheld Thursday the child pornography conviction and accompanying 10-year prison term handed to a Nebraska man who superimposed the image of an underaged girl's face onto a picture of two adults having sex.

The 8th US Circuit Court of Appeals rejected (PDF) claims from 28-year-old Jeffrey Anderson that his actions were protected by the First Amendment. Anderson sent the doctored image to his 11-year-old half-sister via Facebook, resulting in the charge of distributing child pornography. Anderson had superimposed the half sister's face onto the photo, the court said.

Among other defenses, Anderson argued that because no minor engaged in sex, he should not have been charged.

The St. Louis-based appeals court agreed that "no minor was sexually abused in the production" of the image. However, the child, known in court documents as "M.A.," was abused in another way, the court concluded. She was falsely portrayed as engaging in sexual activity.

Anderson argues that the law as applied here is not narrowly tailored because it encompasses an image that clearly depicts adult bodies and because it punishes 'private' distribution of a morphed image. But the harm a child suffers from appearing as the purported subject of pornography in a digital image that is distributed via the Internet can implicate a compelling government interest regardless of the image's verisimilitude or the initial size of its audience. Anderson's distribution targeted M.A. through her Facebook account, and the image suggested her involvement in sexual intercourse as an eleven-year-old child. There was no less restrictive means for the government effectively to protect this child from the exploitation and psychological harm resulting from the distribution of the morphed image than to prohibit Anderson from disseminating it.

The court also noted that the photo was delivered to the girl with a message: "'This is what we will do."