Obscene Or Not Obscene

As a playwright (not our client) once wrote: “A rose by any other name would smell as sweet.” Under U.S. obscenity laws, if Rose looks younger than 18 but actually isn’t, the same amount of jail time would apply.

A prospective client of ours almost learned this the hard way. George, a photography dealer, asked us to represent him in connection with a proposed gallery exhibition that would reinterpret Shakespeare’s Romeo & Juliet. Being fans of great literature (our mother is an English Professor), we thought it sounded like a great idea. As it turned out, it wasn’t.

George explained that, true to Shakespeare, the photographs would portray the lovers as star-crossed adolescents, with an unconventional twist: Some of the images would be sexually explicit. Very, very explicit. The dealer assured us that the models in the photographs were over 18, but they looked younger, and he wanted to know whether there was any problem with mounting the show and selling the photos. Though we were somewhat ambivalent (to put it mildly), we decided to do some legal research.

When George came in for an initial consultation, we said that there had been considerable legislative action and case law in the U.S. on the issue of obscenity in general, and child pornography in particular. In fact, the Child Pornography Prevention Act of 1996 (CPPA) outlawed the possession or distribution of any photograph that “is, or appears to be, of a minor engaging in sexually explicit conduct,” which would have squarely prohibited George’s planned exhibition.

The CPPA was enacted partly in response to the Internet and other technological advances that permit the creation of computer-generated images that appear to be of children, even though they are not. The law enabled federal prosecutors to win convictions in child pornography cases without proving that an actual minor was depicted. The CPPA did provide an affirmative defense: Such material might not be a violation if the defendant can show when the work was created, the person involved was an adult and that the material was not advertised, promoted, described or distributed so as to “convey the impression” that it is or contains “a visual depiction of a minor engaging in sexual conduct.”

Better news for George was found in a case from 2002, Ashcroft v. The Free Speech Coalition, in which the Supreme Court addressed the CPPA provisions that prohibit adults from depicting children in a sexually explicit fashion, and struck them down as overly broad and therefore unconstitutional. The case involved various plaintiffs (including a trade association for adult entertainment, a photographer of erotic images, a painter of nudes and a book publisher) who sued the U.S. attorney general and the Justice Department in federal court in California, alleging that the CPPA prohibited them from creating works protected by the First Amendment. The Supreme Court held that sexual expression that does not depict actual children and is not “obscene” (under criteria set forth by the court) is protected by the First Amendment.

We pointed out that, as it happened, Romeo & Juliet was mentioned in the procedural history of the Ashcroft case. The district court had sided with the government and dismissed the claim that the CPPA was overly broad, because it was “highly unlikely” that any “adaptations of sexual works like Romeo & Juliet will be treated as ‘criminal contraband.’” The Court of Appeals for the Ninth Circuit reversed the ruling, and in affirming this decision the Supreme Court cited the play, whose stars are “the most famous pair of teenage lovers, one of whom is just 13.” The court observed: “Shakespeare may not have written sexually explicit scenes from the Elizabethan audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene.”

Curious, George asked us whether there were legal restrictions on erotic photographs of real children if they are not considered obscene. He noted that pictures of nude children by photographers such as Sally Mann, Larry Clark, and Jock Sturges have been shown in galleries and museums. Our would-be client’s line of inquiry was starting to make us a little uncomfortable, but fortunately (we thought) the answer to his question was yes.

In 1982 the Supreme Court unanimously stated that the use of real children in pornography is not protected by the First Amendment and may be prohibited, whether or not it is considered obscene. The case, New York v. Ferber, involved the owner of a Manhattan adult bookstore who sold two pornographic movies involving children to an undercover officer. A trial court convicted the owner of violating a New York statute prohibiting child pornography. The appeals court reversed the decision on the grounds that it violated the defendant’s First Amendment rights. The Supreme Court disagreed, however, and ruled that states have an interest in stopping child pornography because it harms children when it is produced and creates further harm to the child by constituting a permanent record of abuse.

The Ferber ruling contrasts with laws on adult pornography, which may be legal if it has literary, artistic, political or scientific merit. Pornographic images (excluding those involving minors) may be protected under the First Amendment, whereas obscene images are not. Citing Ferber, the Supreme Court reiterated in its Ashcroft ruling that when children are used in pornography, “the continued circulation itself would harm the child who had participated.” Moreover, since trafficking in child pornography is an economic motive for its production, the state has “an interest in closing the distribution network.”

“Since the images in my gallery wouldn’t feature actual kids, I can’t be prosecuted, right?” the dealer asked.

“Wrong,” we replied in unison. We explained that, in response to Ashcroft, and in order to try to remedy the unconstitutional portions of the CPPA, President Bush signed the so-called “Protect” Act last April. Protect (an acronym for “prosecutorial remedies and other tools to end the exploitation of children today”) removed sections of the CPPA that the Supreme Court had declared unconstitutional and expanded the definition of child pornography to include “virtual pornography,” which uses adults who look like children.

“As part of the show, I was thinking of printing a glossy hardbound catalogue of erotic photographs of adults who are ‘morphed’ to look like kids,” said George. “Under the new law, could I be prosecuted for selling this type of publication?” We were tempted to offer a quote from Act III of Romeo & Juliet (“Was ever book containing such vile matter so fairly bound?”), but instead we just laid out the law for George. This guy was now really getting on our nerves.

We explained that Protect specifically addresses computer-generated images that do not depict real children. Under the statute, child pornography includes a visual portrayal that “is a digital image, or computer-generated image, that is, or is indistinguishable from, that of a minor engaged in sexually explicit conduct.” Thankfully, we thought, this language would prohibit George’s publication.

“Could I get into trouble even if I don’t create or sell the images?” he asked next. Again, the answer was yes. In 1990 the Supreme Court ruled in Osborne v. Ohio that merely possessing child pornography – as opposed to creating or distributing it – is a crime. That case involved the conviction of a man who had four sexually explicit pictures of a nude male adolescent. The defendant was accused of violating an Ohio statute that made it a crime to have or view any material showing a nude minor who is not the person’s child or ward, except in certain situations. The court reasoned that destroying such material is desirable because “pedophiles use child pornography to seduce other children into sexual activity.” We explained that, unlike other areas of obscenity law, when it comes to child pornography, privacy rights do not protect the defendant.

“So what’s the worst that could happen?” he asked indignantly. “I pay a fine?”

“Actually, you could go to prison,” we replied cheerfully. We explained that the CPPA is a criminal statute, and violators face substantial fines and sentences of up to 15 years (30 for repeat offenders). Since child pornographers typically aren’t popular with other inmates, their prison stays tend to be especially unpleasant.

“This is censorship!” George railed. “Soon even innocent family photos of naked children will be outlawed!”

Actually, he wasn’t so wrong. In fact, there have been a number of recent criminal prosecutions in the U.S. for just this type of photography. To take one example, in 1995 a New Jersey artist with no criminal record and many exhibitions to his credit took nude photographs of his 6-year-old daughter for his class at the International Center of Photography. The photographer was jailed and temporarily prevented from seeing his daughter before the charges were dropped.

The impact of the CPPA was also apparent during the making of the 1997 film of the Vladimir Nabokov novel Lolita, which explores a love affair between a 12-year-old girl and a middle-aged man. The producers were so worried about running afoul of obscenity laws that they had a prominent lawyer spend six weeks assisting in the editing of the film, even though body doubles were used for the sex scenes. The screenwriter was quoted as saying, “Having a lawyer in the editing room is something that shouldn’t happen to a dog, and if it happened more often, only dogs would make films.”

Although we supported George’s First Amendment rights in theory, we weren’t comfortable with the subject matter of the planned show or our would-be client, and we decided not to represent him. Actually, we were relieved to be rid of George and his photographs.

As the same playwright once wrote, “Parting is such sweet sorrow.” But not in this case.