Should Posting Fake Naked Photos Be Illegal? Proposed Ban Stirs Up Controversy, More Lewd Photos

This photo is a fake: That's Rep. Earnest Smith's head, but it's definitely not his body. (Photo: Andre Walker/Georgia …Inspired by the plight of a teenage girl who was being cyber bullied last year, Georgia state representative Earnest Smith proposed legislation that would make it make it illegal to digitally add an "unknowing person" to a photograph showing nudity or sexual conduct. People who do so would be charged with "offense against public order" including defamation, and would have to pay a $1,000 fine.

Related: Where's the Line Between Free Speech and Hate Speech?

His proposal, House Bill 39 (cosponsored by fellow Democratic Representative Pam Dickerson), was challenged almost immediately by Georgia blogger Andre Walker, who pasted a digital photo of Smith's head onto the body of a male porn star and then published the image on his blog.

"I did exactly what Rep. Smith wants to make illegal," Walker wrote at Georgia Politics Unfiltered.

There's a pretty big difference between parody -- which is what we think Walker's obviously fake photo of Smith is -- and cyber bullying, which is what Smith says he was originally trying to prevent with his ban. It may be hilarious to put a lawmaker's head on a buff stranger's body, but with apps out there that let you digitally undress your Facebook friends and websites that encourage guys to post revenge porn pictures of their ex-girlfriends, the publication of lewd, faked photos can harm private citizens, not just embarrass politicians.

Walker explained that he altered the image to prove a point -- that Smith is a public figure and, as such, a ban like his wouldn't apply. "Just like someone had the protected right to depict former President George W. Bush as a monkey, I have the protected right to Photoshop the head of any elected official onto the body of anything I chose," Walker wrote. "The First Amendment to the Constitution of the United States protects all forms of speech, not just spoken word."


Smith claims that his ban is not a First Amendment issue. "No one has a right to make fun of anyone," he told the Savannah Morning News. "You have a right to speak, but no one has a right to disparage another person. It's not a First Amendment right."

Except... it is. The Supreme Court ruled that parody is a protected form of free speech in 1988, in a nearly unanimous verdict for the Hustler Magazine v. Jerry Falwell trial.

Even though his campaign has gone from "stop cyber bullying" to "stop being mean to me," Smith insists that his proposed legislation is sound. "This is about being vulgar," Smith told Fox News. "We're becoming a nation of vulgar people."


While that's probably true -- witness pretty much every marketing tactic tried by Urban Outfitters lately -- it gets tricky when you try to define "vulgar" or, for that matter "obscene." If the Westboro Baptist Church's picketing of funerals is protected speech, in spite of the obscenities on their signs, how can an obviously fake, not-racially-charged, Photoshopped image be illegal?

"Rep. Smith needs to grow some thick skin if he's going to be an elected official," Walker said. "And by the way, I cannot believe Representative Earnest Smith thinks I'm insulting him by putting his head on the body of a well-built porn star."

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