Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
The Indiana Court of Appeals reversed a Hendricks Superior Court’s order that had denied a man’s motion to dismiss two charges of child pornography possession, with the appellate court citing U.S. Supreme Court precedent as part of its decision.
In the case, the state charged Frank Grecco III in May 2023 with two counts of possession of child pornography as level 6 felonies.
Grecco filed a motion to dismiss “pursuant to Indiana Code § 35-34-1-4(a)(5) and (11)” and asserted that the prosecution violated federal precedent and the protections provided by the First Amendment of the United States Constitution and Article 1, Section 9 of the Indiana Constitution, according to court records.
The state filed a response and conceded in part that Grecco “correctly states in his memorandum that these charges allege no possession of pornography of any actual, living and breathing children” and that “[t]he images of the children in question are best described as cartoon caricatures of the ‘manga’ or ‘hentai’ variety, which originated in Japan.”
The trial court denied Grecco’s motion.
The appellate court granted Grecco’s petition to accept jurisdiction of his interlocutory appeal, in which he argued that this case involves a form of simulated child pornography that is “in the form of manga (comic books) and anime (cartoons).”
He contended the images are drawn and do not use actual children in their production.
Grecco asserted that Indiana’s law prohibiting the possession or access of simulated child pornography violates the First Amendment and Article 1, Section 9 of the Indiana Constitution.
In its opinion, the appellate court noted that the state agreed that Grecco’s motion to dismiss should have been granted and acknowledged that Grecco need only show that the statute is unconstitutional on the facts of the particular case because he made an as-applied challenge.
The appellate court pointed out in its opinion that in 2002, the U.S. Supreme Court addressed whether the Child Pornography Prevention Act of 1996 abridged the freedom of speech in Ashcraft v. Free Speech Coalition.
“Accordingly, the Court held that the statute prohibiting virtual child pornography covered materials beyond the categories recognized in Ferber ‘and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment.’ Id. at 256, 122 S. Ct. at 1405. It concluded that ‘[t]he provision abridges the freedom to engage in a substantial amount of lawful speech’ and was ‘overbroad and unconstitutional,'” the appellate court stated.
The appellate court concluded, “In light of the precedent from the United States Supreme Court and under these circumstances in which the State conceded before the trial court that the materials Grecco was charged with possessing did not depict actual children, as well as the State’s agreement on appeal that Grecco’s motion to dismiss should have been granted, we reverse.”
Indiana Lawyer reached out to Cara Schaefer Wieneke and John Razumich, who were listed in court records as Grecco’s attorneys, as well as the Indiana Attorney General’s office for comment on the reversal.
Razumich issued a statement that read, “We are grateful that the Court of Appeals agreed with our argument that these cartoon drawings were protected by both the First Amendment and existing federal precedent. The images that Mr. Grecco was accused of viewing were clearly over-the-top drawings that did not feature real people, and the law protects such drawings. With increasingly sophisticated AI-generated artwork, there will probably be a need to revisit this issue in the future if a case involves realistic looking drawings but there was zero chance in this case that these cartoons could have possibly been mistaken as anything other than drawings. For now, we are again grateful that there is clear precedent in Indiana that our child pornography law does not criminalize the viewing of dirty cartoons.”
The case is Frank Grecco III v. State of Indiana, 24A-CR-560.
This story has been updated.
Please enable JavaScript to view this content.