MILFORD – The attorney for a Massachusetts man accused of possessing pornographic images of two 15-year-old campers at an Amherst summer camp said he is prepared to argue that the pictures being labeled as child pornography are protected under the First Amendment.
On July 4, Amherst police arrested Marshall Zidel, 59, of 10 Cross St., Somerville, Mass., after staff at Camp Young Judea discovered at least seven digital images with the faces of two campers superimposed on the bodies of naked women. In several of the photos, the two campers, who attended Young Judea during the summer of 2004, were shown in sexually explicit poses.
Zidel was charged with four counts of possession of child pornography, a felony. He will return to court on Aug. 4 for a probable cause hearing.
According to an affidavit unsealed in Milford District Court yesterday at the request of The New Hampshire Union Leader, Young Judea’s executive director, Kenneth Kornreich, contacted Amherst police after discovering the images on a CD-ROM that Zidel had given him.
Kornreich told police that Zidel, described in the affidavit as a camp employee, had given him three discs, and two had contained pictures of camp activities, but the third had the suspicious photos on it.
The unsealed affidavit also describes how Zidel readily admitted to Amherst police that he had digitally placed the faces of the two 15-year-old campers onto other bodies for his own “personal fantasy.” According to the affidavit, Zidel also told police that the pictures were “fakes” and were not “out there” on the Internet.
Behzad Mirhashem, an attorney with the Manchester Public Defender’s office who is representing Zidel, said that at the upcoming probable cause hearing he plans to argue that the charges should be dropped on the grounds that the pictures are protected by the First Amendment’s guarantee of free speech.
“Our intent is to argue there is no probable cause to charge Mr. Zidel based on what he’s accused of doing,” Mirhashem said. “We maintain (what he did) is not a crime.”
New Hampshire law defines child pornography as the depiction of a child under the age of 16 “engaging in sexual activity” or posing in a lewd fashion. Mirhashem said because the photos his client possessed were digitally altered, and the girls shown were never engaged in actual sexual activity, the law is not applicable.
“If it’s not an actual real child, there is no actual real harm,” he said. In 2002, the U.S. Supreme Court ruled that as long as virtual child pornography is not obscene and no sexual abuse was committed during its creation, it is protected by the First Amendment. Mirhashem said this finding supports his client’s case directly.
Amherst Police Lt. Peter Lyon, who is prosecuting the case, declined to comment on either the charges or Mirhashem’s claim that Zidel’s photos are protected by the First Amendment. Mirhashem declined to comment any further on his client or the charges, saying he would prefer to make his case in the courtroom.
Zidel is not listed in the Somerville, Mass., phone book, but an Internet search did turn up the Web site of “Zidel Art,” a Somerville-based photography business run by a Marshall Zidel.
According to the Web site, Zidel is a “longtime photographer and educator” who works with digital tools to “enhance and manipulate” the picture.