From the nytimes.com
MUSKEGON, Mich. — People in this economically pressed town near Lake Michigan are divided into two camps: Those who think Evan Emory should pay hard for what he did, and those who think he should be let off easy.
Mr. Emory, 21, an aspiring singer and songwriter, became a household name here last month when he edited a video to make it appear that elementary school children in a local classroom were listening to him sing a song with graphic sexual lyrics. He then showed the video in a nightclub and posted it on YouTube.
Tony Tague, the Muskegon County prosecutor, stands firmly in the first camp: He charged Mr. Emory with manufacturing and distributing child pornography, a crime that carries a penalty of up to 20 years in prison and 25 years on the sex offender registry.
“It is a serious, a huge violation,” said Charles Willick, whose 6-year-old daughter was one of the students, all readily identifiable, in the video. “He crossed the line when he used children.”
Mr. Emory, who had gotten permission to sing songs like “Lunchlady Land” for the first graders, waited until the students left for the day and then recorded new, sexually explicit lyrics, miming gestures to accompany them. He then edited the video to make it seem as if the children were listening to the sexual lyrics and making faces in response.
Mr. Emory’s supporters, including the almost 3,000 people who have “liked” the “Free Evan Emory” page on Facebook, say the charge is a vast overreaction to a prank gone astray, and a threat to free expression.
“I think they’re making a very huge deal out of it ,and it’s really not that big of a deal,” said Holly Hawkins, 27, a waitress at the Holiday Inn downtown. “None of the kids were harmed in any way.”
Legal experts say the case — and the strong reactions it has drawn from places as far as Ireland and Australia— underscores the still evolving nature of the law when it comes to defining child pornography in the age of Facebook, YouTube and sexting.
The Supreme Court has ruled that child pornography is not subject to the same First Amendment protections as adult pornography, since it is assumed that the child is being abused.
But with the rise of technology, said Carissa B. Hessick, an associate professor at the Sandra Day O’Connor College of Law at Arizona State and an expert on child pornography and criminal sentencing, “now we have situations where people are being arrested and charged” in connection with digitally altered images, where no child was abused.
There remains much uncertainty about how the law should be applied in such cases, she said. But because most defendants take plea bargains instead of going to trial, the courts are often deprived of the opportunity to sort it out.
Mr. Tague argues that the state statute covers not only filming a child in a sexual activity but also making it appear that a child is engaging in that activity. But Ms. Hessick questioned whether the Michigan law could be applied in Mr. Emory’s case or “whether they’ve overcharged him.”
Even the Muskegon County sheriff, Dean Roesler, whose deputies arrested Mr. Emory after parents complained about the video, acknowledged that the case represented uncharted territory. While he found the video alarming and offensive, Sheriff Roesler said, “I realize the Internet is just a whole new arena that we’re learning to deal with in law enforcement, and actual legislation is having a hard time keeping up.”
Mr. Emory said the idea for the video arose out of planning for a Valentine’s Day variety show at a downtown club. He wrote the explicit song when he was 16, he said, and had played it in bars before. But for the variety show he wanted to pair it with “an inappropriate audience” as a comedy segment. He thought of using elderly people, he said, but decided instead on young children.
He has admitted that he deceived the teachers at Beechnau Elementary School, in the small farming community of Ravenna, about his intentions. Mr. Emory included a disclaimer with the video, saying that no children had actually been exposed to the sexual lyrics. He said that his friends — fans of Daniel Tosh and other edgy comedians on the Internet and cable television — all thought the video was hilarious when they saw it at the local nightclub or on YouTube. (It has since been removed.)
But the hilarity vanished when sheriff’s deputies showed up at Mr. Emory’s house and seized his computer and his iPhone.
He realized “they were looking for things that a pedophile would have,” Mr. Emory said recently during an interview in his lawyer’s office, and it horrified him. He cried several times during the interview. During the night he spent in jail, he said, “I just thought about how much I regretted this and how funny it wasn’t anymore.”
Since his arrest, he has been suspended from his job as a waiter at Applebee’s, he said. The court expenses have forced his father, a power plant insulator who was laid off in November, to go out of state to find work.
And Mr. Emory, who has no criminal record, said he worried that people who did not know him would think he was a child pornographer. While out on bond, he is restricted from having contact with children or performing music.
In an interview with the local NBC affiliate shortly before his arrest, Mr. Emory, asked if he regretted making the video, said, “I guess we’ll see how many views it gets on the Internet.”
The acrimony over the case has been heightened in a small town where relationships often stretch back decades. Mr. Emory attended Beechnau Elementary and has known some of the teachers there all of his life, augmenting feelings of betrayal and loss of trust.
Joyce Emory, Mr. Emory’s mother, worries about running into people she knows and has hardly left the house for weeks, except to go to her job as a pharmacy technician. After her son’s arraignment, she said, their car was followed by angry parents who yelled and took pictures with cellphones.
“I see their side, but they have to see my side, too,” she said, adding about her son, “The kids, they just don’t think.”
The parents of children in the video have also been singled out — one mother received harassing calls and messages on her Facebook page from people angry about the charges against Mr. Emory.
Terry J. Nolan, Mr. Emory’s lawyer, and Mr. Tague, the prosecutor, have a unique connection: In 2002, Mr. Tague’s office prosecuted Mr. Nolan for possession of cocaine, sending him to the county jail for six months — an experience that Mr. Nolan, who regained his license in 2009, said has helped him empathize with clients like Mr. Emory.
“He’s a beautiful kid,” Mr. Nolan said. “He’s got a great spirit.”
The fact that the sheriff’s office found no evidence of child pornography in Mr. Emory’s home or computer is helping to nourish the seed of compromise.
Mr. Tague defends his original charge but says he wants to resolve the case in a way “that will send a message that this is wrong but will not ruin the young man’s life.”
One path under discussion, Mr. Nolan said, would be for Mr. Emory to plead to a lesser charge, receiving some jail time, probation and community service. He would not have to register as a sex offender. But any deal would need approval from a judge. A hearing is set for next Monday, Mr. Nolan said.
Mr. Willick and other parents said they were happy that Mr. Tague took an aggressive stand, if only to help keep it from happening again.
But the anger is far from gone.
“Does 20 years fit the crime? No,” said Dan Peebles, one of the parents. But, he added, “Would I care if he got 20 years? No.”
Correction: March 8, 2011
A previous version of this article misstated the timing of an interview Evan Emory gave to an NBC affiliate; it was before his arrest, not after. It also missated where Terry J. Nolan served time for possession of cocaine in 2002; it was county jail, not prison.
What do you think? Are the charges too harsh? Should he face time on the sex offender list?