“Mr. Emory knew what he was doing. Everybody says he’s a good kid, he’s a good kid... but he’s done something...very vile to children...Where’s his morals? He has none after doing this.”
-Stephen Hellman, father of one of the victims
On January 12, 2011, Evan Emory, a 21-year-old amateur musician, entered a Muskegon County, Michigan elementary school and sung a few songs to a class of first-graders while a friend filmed the event. He arranged the show through the school administrators claiming he would use the footage “as a portion of his portfolio to help him gain admission to a Big Ten School of Education.” What they didn’t know was that he would later film a different song called, “The Naughty Song” while the children and teachers were absent from the room. The song featured very explicit lyrics that were not suitable for children. And yet Emory set to work editing the two videos together, omitting the “nice” songs with the sexually explicit one. The end result made it seem as if he had sung “The Naughty Song” to the children, their reactions included in the video. He uploaded the video onto Youtube and a few weeks later concerned parents phone calls started flowing in to the school offices.
On February 15, Emory was charged with “manufacturing child sexual abusive material,” a 20-year felony. Emory violated a portion of the Michigan Child Pornography penal code that addresses a person who “persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material.” This is the idea Muskegon County Prosecutor, Tony Tague, is running with. But to accurately decide his case, “abusive activity” must be defined. The Michigan law is vague and overbroad, just as its federal predecessor, the Child Pornography Prevention Act of 1996. CPPA prohibited images that "appear to be" children engaged in sexual activity or "convey the impression" that the images depict minors engaged in sexual activity. The Supreme Court ruled that these provisions were overbroad and threatening to first amendment rights and thus, unconstitutional (Ashcroft v. Free Speech Coalition 2002). The Michigan law has a very familiar CPPA-ring to it. The law would work in taking down the traditional child sex offender but leaves too much undefined room for addressing an indirect threat like Emory.
Is it fair to charge Emory with a felony when he gave fair warning in the beginning and ending credits that the children “were not actually used in the performance” of the song? There are other examples of the “comedic routine” he put on in popular culture. In recent years, many comedians have used the illusion of editing to make it seem like they are performing their routine, which is usually inappropriate, in front of naïve children. In a 2004 episode of The Chappelle Show, a segment called “Kneehigh Park” shows children learning about sex and drugs in a very explicit manner. At one point, a puppet shows its penis in the vicinity of a group of unsuspecting kids. Their gross-out reaction follows. While Emory’s lyrics were lewd, they were nowhere near the physical/verbal content of the Chapelle’s Show episode. How is it that a 21-year-old college musician is slammed with the possibility of registering as a sex offender and spending 20 years in prison but Dave Chappelle can still air the sketch in reruns and online video libraries? The answer comes down to power and money. If Evan Emory was financially capable of taking the matter to appeals court, I am confident he would come out on top.
On March 14, 2011, Evan Emory pleaded no contest to a reduced felony count to Muskegon County 14th Circuit Judge William C. Marietti. The plea deal requires him to serve 60 days in jail, two years of probation, and 200 hours of community service. After a successful probation, Emory will be allowed to plead to a misdemeanor instead of a felony.
The Evan Emory case brings to light many of the undefined obscenity laws of our country at a federal and state level. There is too much undefined space. The result is that laws are used for the wrong reasons. While I think the actions he took were in complete distaste, they were not worthy of all he's had to go through. Evan Emory is not a sex offender.
Parents like Stephen Hellman ought to be more upset with the school for allowing a stranger to film his child in a video he was unaware of rather than the editing which made it look suggestive.
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