## Facts

- A.H., age 16, and her boyfriend, J.G.W., age 17, used a digital camera to take photographs of themselves nude and engaged in sexual behavior.
- The photographs were allegedly emailed from A.H.’s home computer to another computer.
- The State did not allege the photographs were shown to any third party.
- The State charged A.H. under section 827.071(3), Florida Statutes, for producing, directing, or promoting a photograph known to depict the sexual conduct of a child.
- A.H. moved to dismiss the delinquency petition, arguing the statute was unconstitutional as applied under Florida’s constitutional right to privacy and that prosecution was not the least intrusive means to serve any compelling state interest.
- The trial court denied the motion, found a compelling state interest in preventing production of the photographs, and concluded prosecution was the least intrusive means.
- A.H. was adjudicated delinquent and appealed.

## Issues

1. Whether section 827.071(3), Florida Statutes, is unconstitutional as applied to a minor who helps create sexually explicit photographs of herself and another minor where the images are not distributed to third parties, in light of Florida’s constitutional right to privacy.
2. Whether the State demonstrated a compelling interest and use of the least intrusive means sufficient to justify applying the statute to the charged conduct.

## Decision

- The appellate court affirmed the denial of A.H.’s motion to dismiss.
- The appellate court affirmed A.H.’s adjudication of delinquency.
- The court held the State had a compelling interest in preventing the production of child pornography and that criminal prosecution under section 827.071(3) was the least intrusive means to further that interest.
- The court held Florida’s constitutional privacy provision did not protect A.H.’s conduct.

## Legal Principles

- When a Florida constitutional privacy claim is implicated, the State must show (1) a compelling state interest and (2) regulation by the least intrusive means.
- Florida has a compelling interest in preventing the sexual exploitation of minors, including harms linked to the creation of child-pornography images.
- Section 827.071(3) applies to the production or promotion of photographs depicting sexual conduct by a child; application does not depend on dissemination to third parties.
- Consensual participation by minors and the absence of third-party viewing do not place self-produced explicit images of minors within Florida constitutional privacy protection.

## Conclusion

The court upheld applying Florida’s child-pornography statute to minors who created explicit images of themselves, concluding that preventing the production of such images serves a compelling state interest, prosecution is the least intrusive means, and the Florida privacy clause does not shield the conduct.


A.H. v. State, 949 So. 2d 234 (Fla. Dist. Ct. App. 1st Dist. 2007)