At least for now, no one is arguing that 21 year old Evan Daniel Emory isn’t deserving of some condemnation.   Eugene Volokh thinks so.   Jonathan Turley thinks so.   Radley Balko thinks so.  Kinda.

Evan Daniel Emory, 21, got permission from Beachnau Elementary School officials in Michigan to record himself singing the song “Lunch Lady Land” in front of a class of first graders, but under the false pretense that he wanted to use the video as part of his application to a school of education. Emory was actually planning a comedy bit. He later dubbed in sexually profane lyrics and posted the video to YouTube, making it look as if he had sang the dirty lyrics directly to the children.

And then all hell broke lose in Ravenna, Michigan.

Now, I can understand if Beachnau school officials and parents don’t share Emory’s sense of humor. I can understand a parent becoming rather irate upon learning that Emory had serenaded the kids with filthy lyrics. And even after learning that the dirty audio had been dubbed in, I can also understand a parent might still be ticked off that his kid’s face appeared in the finished product. (The video is obviously offline now, but according to the article, it begins with Emory writing on a chalkboard, “Disclaimer: No children were exposed to the ‘Graphic Content’ of this video.”)

Then Radley played a bit of a joke on his readers, suggesting that the local prosecutor, Muskegon County District Attorney Tony Tague, responded by calming down the townspeople with their torches and pitchforks.

“Look, I know a lot of people are upset. But the video has been taken down, and the actual damage done to the kids is minimal. They didn’t actually hear the sexually suggestive lyrics. Any time you have a story about sex, children, and the Internet, there’s going to be a tendency for some people to overreact. Mr. Emory showed incredibly poor judgment here, and I hope he has learned his lesson. But my job is to fairly apply the law, and I simply don’t think it would be in the interest of justice to charge Mr. Emory with a crime just to register our moral outrage at his prank.

Of course, that’s not what happened. Instead, Emory was arrested and charged “with manufacturing child sexual abusive material, a 20-year felony.”

While no voice has yet been raised in support of the charge, contending that anything done here satisfies either the local statute or some broader notion of creating child porn.  Still, there remains a question of whether this conduct constitutes a crime, and if so, what?

It appears from Radley’s post, most notably his title, The Criminalization of Borat, that this conduct falls into the prank category, and that, “in the interest of justice,” it’s dismissed as no harm, no foul.  It’s not nearly as clear to me.

There appears to be little doubt that Emory lied his way into a school, thus fraudulently inducing the school to permit him to obtain footage of first graders for his own purposes.  My understanding is that their faces were readily identifiable in the video, which was gone before I could see it.   While the children were never, in fact, exposed to anything inappropriate in song, they were exposed to the world in the video.  That alone troubles me.

It may well be that my personal sensibilities about the exploitation of children color my vision.  It may be that a shot intentionally fired at a person’s head, which happens to miss, doesn’t negate an attempt at murder.  But the conduct here strikes me as going beyond a mere prank, and exceeds the no harm, no foul, analysis. 

If so, then what crime would it be?  Or am I overly sensitive to improper conduct involving children?