Brasse v. State

Issue

Is a state child pornography statute that reaches computer-generated images indistinguishable from an actual and identifiable child facially overbroad under the First Amendment after Ashcroft v. Free Speech Coalition?

Rule

Md. Code Ann., Crim. Law section 11-208 prohibits knowingly possessing a film, videotape, photograph, or other visual representation showing an actual child, or a computer-generated image that is indistinguishable from an actual and identifiable child under the age of sixteen, engaged in specified sexual conduct or in a state of sexual excitement. Section 11-208(a)(1) defines indistinguishable from an actual and identifiable child to mean that an ordinary person would conclude the image is of an actual and identifiable minor. Section 11-208(a)(2) includes a computer-generated image created, adapted, or modified to appear as an actual and identifiable child, and section 11-208(a)(3) excludes drawings, cartoons, sculptures, and paintings. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), struck down 18 U.S.C. section 2256(8)(B) because its appears to be language reached depictions involving no real child. Under United States v. Williams, 553 U.S. 285 (2008), a statute is facially invalid for overbreadth only if it prohibits a substantial amount of protected speech, and the Supreme Court's decision in United States v. Hansen places the burden of that showing on the challenger. The denial of a motion to dismiss on constitutional grounds is reviewed de novo.

Application

The State charged Douglas Brasse with five counts of possessing a visual representation of a child under sixteen engaged in sexual conduct, each count relating to a different video. None of the counts alleged that Brasse possessed computer-generated material. He nonetheless moved to dismiss the indictment on the ground that section 11-208 is facially unconstitutional, arguing that its computer-generated image clause criminalizes pornography that involves and harms no real child. At the motions hearing his counsel distinguished three categories: actual images of a real child, purely computer-generated images depicting no real human, and morphed images in which a real child's head is placed on another body. He conceded that images of actual children can be criminalized but contended that section 11-208 also swept in purely virtual material. The circuit court denied the motion, holding that the statute had been drafted to comport with Free Speech Coalition. Brasse then pleaded not guilty on an agreed statement of facts to one count, was found guilty, and was sentenced to five years with all but six months suspended and five years of probation. The Appellate Court of Maryland worked from the statutory text and the legislative history. It held that section 11-208 does not contain the appears to be language that doomed the federal provision in Free Speech Coalition. Maryland reaches only an actual child or a computer-generated image indistinguishable from an actual and identifiable child, meaning a child who does exist, and it expressly excludes drawings, cartoons, sculptures, and paintings. The court read the statute to cover morphed images, in which an innocent picture of a real child is altered to appear sexual, and deepfakes, which the court described at some length as products of neural networks trained on footage of a specific person and, more recently, of diffusion models trained on datasets scraped from the internet and often fine tuned on image sets of a particular child, frequently a known abuse victim or a famous child. Aligning itself with federal and state decisions holding morphed material unprotected, including People v. McKown, 215 N.E.3d 831 (Ill. 2022), and noting the contrary view in State v. Zidel, 940 A.2d 255 (N.H. 2008), the court reasoned that when an image uses an actual child's face and is indistinguishable from an actual and identifiable child it exposes that child to reputational and emotional harm, and that this harm is what removes the image from First Amendment protection. On that reasoning the AI-generated case is the morphing case: the constitutional line is whether a real, identifiable child is implicated, not which software produced the file. The Appellate Court of Maryland did not claim the statute is airtight. It acknowledged that an image might be created virtually without reference to any specific person and still look indistinguishable from an actual minor whom the State could identify at trial, and it said that in that circumstance there is a concern the statute covers virtual child pornography that Free Speech Coalition held protected. That concern did not carry the facial challenge, because a statute falls facially only if it prohibits a substantial amount of protected speech and the challenger must make that showing. Brasse offered no statistics, cases, or other evidence of a realistic danger that section 11-208 would significantly compromise the First Amendment rights of parties not before the court, and the court said it was aware of no prosecution for possessing computer-generated material that was not based on images of an actual child but happened to look like one.

Conclusion

The Appellate Court of Maryland affirmed the judgment of the Circuit Court for Howard County, holding that Douglas Brasse failed to show Md. Code Ann., Crim. Law section 11-208 is facially overbroad and that the circuit court properly denied his motion to dismiss the indictment. The opinion is reported and comes from Maryland's intermediate appellate court, so it binds Maryland trial courts unless the Supreme Court of Maryland holds otherwise. The holding should be read narrowly: it rejects a facial challenge on the record presented, and the court itself identified a category of purely synthetic imagery that could raise a genuine First Amendment problem and left that question for a case presenting it. The panel was unanimous and drew no dissent.

only images of an actual child or a computer-generated image that is indistinguishable from

Opinion of Judge Graeff, distinguishing Maryland's statute from the federal provision struck down in Free Speech Coalition.

that the statute covers virtual child pornography that Free Speech Coalition held was

Opinion of Judge Graeff, acknowledging the residual constitutional concern the facial challenge did not reach.

appellant has failed to show that CR § 11-208 is overbroad.

Opinion of Judge Graeff, stating the disposition of the facial overbreadth challenge on this record.

Why it matters. Brasse v. State is the clearest appellate statement that AI-generated child sexual abuse material built from a real, identifiable child's likeness is analyzed like morphed imagery and falls outside the First Amendment, while purely synthetic imagery remains governed by Ashcroft v. Free Speech Coalition. It also shows that facial overbreadth challenges to these statutes fail without an evidentiary showing, which is the same record-building lesson that decided Dore, Schram, and Amyda.

Read the full opinion on CourtListener

This summary was written from the opinion itself. Every quotation above was located in the text of the decision it is attributed to. It is a summary for public education and is not legal advice.

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