A New School of Art Criticism: Child Pornography Prosecution

By Elizabeth A. McNamara

Until recently, prosecutors have applied child pornography laws in a way that caused little concern for media companies, appropriately targeting those who trafficked in an underground market of videotapes and photographs of children that specifically catered to pedophiliac tastes. The past year, however, has seen a disturbing new phenomenon: prosecutors applying the statutes to serious artistic works with broad public appeal.

In one widely publicized case, the authorities in Oklahoma City seized all copies of the Academy Award-winning movie The Tin Drum from local video stores, and, only after the seizure, sought a judicial declaration that the film is child pornography.¹ In Alabama and Tennessee, grand juries actually indicted the bookstore chain Barnes & Noble in cases involving fine art photographs of nude children taken by Sally Mann, Jock Sturges and David Hamilton. Finally, in the wake of a recent federal statute aimed at computer-generated child pornography,² concern that the new film version of Lolita might be a tempting target for a similar prosecution left the movie without a U.S. distributor for over a year.

Although attempts to suppress artistic works as child pornography still remain isolated incidents, they nevertheless pose a substantial challenge to businesses that produce, market or sell products that include even non-explicit depictions of child or adolescent sexuality. Most statutes proscribing child pornography use broad, expansive language that is designed to avoid providing inadvertent loopholes to imaginative child pornographers. Thus, a prosecutor pushing a moral agenda can find in even the most celebrated film arguable "depictions" or "representations" of "simulated" sexual conduct or "lewd and lascivious displays" of nudity, the standard phrases for conduct prohibited under these statutes. Such broad categories of prohibited conduct-often left statutorily undefined-increase the risk that an artistic work could fall within the literal scope of a statute (albeit unconstitutionally). This risk is made greater by significant variations among the many state and federal child pornography statutes.

The State of the Law

Existing caselaw interpreting child pornography statutes does not provide a well-developed constitutional defense for material that has serious literary, artistic, political or social value. Undoubtedly, the reason for this is that courts considering constitutional challenges have only done so where the specific material at issue was indisputably child pornography. Under these circumstances, it is not surprising that courts have been unsympathetic to arguments that child pornography statutes might reach protected artistic works.

The extent to which courts should consider artistic and other values when determining whether material constitutes proscribable child pornography is an issue left somewhat unsettled by the Supreme Court's seminal decision in Ferber v. New York.³ The Ferber Court established that states have greater leeway to prohibit child pornography than adult pornography, which cannot be proscribed unless obscene under the standard set forth in Miller v. California.⁴ Finding the Miller standard inadequate to protect children, the Court "adjusted" the standard and permitted states to prohibit child pornography without requiring that the work be considered as a whole, appeal to the prurient interest of an average person, or portray sexual conduct in a patently offensive way.⁵ However, the Court stopped short of eliminating the requirement that the material lack serious literary, artistic, political or social value. Faced with a film "devoted almost exclusively to depicting young boys masturbating," the Court opined that very little material depicting children having sex would be worthy of constitutional protection, and that courts could safely deal with such works on a case-by-case basis.⁶

  Because serious works like The Tin Drum and the photographs at issue in the Barnes & Noble cases have never been prosecuted as child pornography before, courts simply have not had occasion to discuss the scope of First Amendment protections for visual depictions of non-explicit sexual conduct by minors. Although The Tin Drum case was recently resolved on statutory grounds, and the Barnes & Noble cases may come to a similar conclusion, given the absence of authority in this area, these cases may still provide some guidance on the constitutional questions.

The Tin Drum Case

In the summer of 1997, the district attorney in Oklahoma City belatedly filed a declaratory judgment action seeking a ruling that The Tin Drum was child pornography-after he and other state officials found themselves defendants in a federal civil rights action based on the confiscation of The Tin Drum by police. Spurred by complaints from a local anti-pornography group, the police obtained an ex parte, oral "advisory" opinion from a state judge that the film contained illegal child pornography. Armed with this oral opinion-but no order, warrant or subpoena-the police seized all known copies of the film.

And what in the film-widely available for almost two decades-prompted this extraordinary action? The two-and-a-half hour film, which won both the Academy Award for Best Foreign Language Film and the Palme D'Or at Cannes in 1979, is a bizarre allegorical fantasy that chronicles the horrific rise of Nazism in Central Europe through the eyes of a boy named Oskar, who resolves to stop growing at the age of three out of fear and distrust of the world around him. Towards the end of the film, a series of scenes portrays Oskar's sexual awakening, as he finds himself attracted to the family's young housekeeper. While these scenes touch on sexual themes, they contain no actual sexual conduct or even nudity. And one of the scenes at issue only involves Oskar fleetingly witnessing sexual conduct by two consenting adults.⁷ Nevertheless, the district attorney claimed that the scenes violate Oklahoma's child pornography statutes⁸ because they constitute a "representation, depiction or description" of the young Oskar in sexual situations. Under the statute, even representations of "simulated" sexual conduct are prohibited, and the district attorney argued that this language reaches the non-explicit scenes in The Tin Drum.⁹ The district attorney also vigorously argued that a statutory exemption for "bona fide objects of art" did not apply to the child pornography provisions.

On October 20, 1998, the federal district court in the Western District of Oklahoma found that The Tin Drum does not violate the state's child pornography statute. As a matter of statutory construction, the court held that the "bona fide objects of art" exemption applies to child pornography cases. The court acknowledged The Tin Drum's clear artistic merit and therefore granted Blockbuster's motion for summary judgment. Because the court based its decision on statutory construction, it did not directly address the parties' constitutional arguments. However, the court did provide some helpful analysis by noting that Oklahoma's statutory exemption for artistic works was consistent with Ferber's instruction that child pornography statutes "must be applied on a case-by-case basis with a proper concern also to avoid suppressing serious literary or artistic expression." The court's observation clarifies that under Ferber (which concerned a statute that had no exemption for artistic works) artistic merit is clearly a relevant consideration for courts applying state statutes.

Because the court resolved The Tin Drum case by applying a statutory exemption for artistic works, it did not consider whether potentially overbroad language in the statute should be given an appropriate limiting construction. Nor did the court address the constitutional limits on construing the "representation" or "portrayal" of sexual conduct to encompass dramatic acting in films involving no actual sex. The court did suggest, however, that the scenes fell within the statute's broad proscription of material in which minors are "portrayed, depicted or represented" as engaging in sexual conduct, even though no actual sexual conduct or nudity occurred. In an opinion clearly informed by the view that the prosecutor overreached in his attempt to enjoin The Tin Drum as child pornography, this acknowledgement should nonetheless give practitioners pause. After The Tin Drum, the extent to which states may prohibit mere "portrayals," as well as other constitutional issues, remain open questions.

The Barnes & Noble Cases

The Barnes & Noble cases may provide an occasion to further develop the "as applied" defense in the child pornography context. The photographs at issue depict nude and partially-clad children. Although prosecutors in Tennessee are no longer pursuing the misdemeanor charges against Barnes & Noble, the bookseller still faces two felony child pornography prosecutions in Alabama. At the heart of the Barnes & Noble prosecution is whether the photographs constitute a "lewd" display of genitals or female breasts by minors. The children in the photographs are not depicted as engaging in sexual activity of any kind. Courts have rejected previous constitutional challenges that "lewd" (or "lascivious") is unconstitutionally vague. In doing so, courts developed a list of relevant factors to consider in determining whether a display is "lewd," including whether the focus of the photograph is the child's genitalia or breasts; whether the photograph's setting and the child's pose, attire, and expression are sexually suggestive; and whether the photograph is intended or designed to elicit a sexual response in the viewer.¹⁰ There is little precedent for applying these factors in the context of artistic works that deal with emerging sexuality in children and adolescents.

Finally, like the newly construed Oklahoma statute but unlike many child pornography statutes, the Alabama statute includes an express "lack of serious artistic value" standard as part of the definition of child pornography.¹¹ Thus, as in The Tin Drum litigation, the Alabama court will not need to reach the Ferber issue of whether the First Amendment requires artistic value to be considered. Nevertheless, because of the dearth of cases discussing artistic merit in the child pornography context, a thoughtful analysis of the interplay between artistic value and subject matter by the court could still have a wide and beneficial impact.

Lolita and The Child Pornography Prevention Act of 1996

The federal enactment of the Child Porno-graphy Prevention Act of 1996 ("CPPA")¹² has further complicated this area. This law expands the definition of child pornography to include visual depictions (including simulations) that give the appearance of a minor engaged in sexually explicit conduct. Congress enacted the law to criminalize computer-generated child pornography, which can be created from innocuous images of children or from adult pornography through the use of computer graphics technology, a process called "morphing."

The CPPA was immediately challenged as unconstitutional in federal courts in the Northern District of California and the District of Maine.¹³ Both courts found that the law was a constitutionally permissible content-neutral regulation, but they disagreed about whether the law was unconstitutionally vague and overbroad. While the Northern District of California upheld the statute, the District of Maine struck it down-but in making the constitutional ruling both courts focused on the ambiguity of the phrase "appears to be a minor" and the potential for that language to reach adult pornography that employed young looking adults. Again, because the plaintiffs in these cases seem primarily interested in arguments to protect adult pornography, neither court found it necessary to focus on the extent to which the statute could be constitutionally applied to artistic works that include arguable "simulated" sexual activity. Yet, the California court did express general skepticism that artistic works would be proscribed by the CPPA.

With the decided lack of clarity in the area, the CPPA had an immediate effect on the new film version of Lolita, directed by Adrian Lyne. Lolita was almost completed when the CPPA was enacted. Like The Tin Drum, Lolita contains no explicit sexual conduct by an underage actor. However, to meet the narrative demands of the film-which is, after all, a story about a pedophile's sexual relationship with a young girl-the director had hired an adult body double to perform scenes involving nudity. After the passage of the new law-apparently concerned that the film might fall within the literal scope of the statute-news reports reveal that the film's producers hired a lawyer to supervise additional editing with particular attention to the specifications of the CPPA. Despite these efforts, the film was unable to get a distributor in the United States for over a year. Finally, Showtime obtained the rights to premiere Lolita in the United States on its cable channel, where it ran in August without legal incident.

Despite the filmmakers' concerns over the CPPA, no prosecutor has yet threatened Lolita with child pornography charges, leaving The Tin Drum and the Barnes & Noble cases as the only recent examples of child pornography charges against artistic works. However, without clear guidance from the courts on the First Amendment protection for such works, they are unlikely to be the last.

Elizabeth A. McNamara is a partner in the New York office of Davis Wright Tremaine. She regularly advises and represents media clients in all areas of communications law. She has recently advised clients on a number of obscenity and child pornography matters.

Gregory A. Welch is an associate in the New York office of Davis Wright Tremaine. He practices in the areas of media law, intellectual property and commercial litigation. He has handled a number of matters involving First Amendment issues.

CHILD PORNOGRAPHY

1. The authors and Robert D. Balin, also in the New York office of Davis Wright Tremaine, are representing Blockbuster Videos, Inc. in this declaratory judgment action.

2. Pub. L. 104-208, 110 Stat. 3009 (codified as 18 U.S.C. §§ 2251, 2252, 2252A, 2256).

3. 458 U.S. 747 (1982).

4. 413 U.S. 15 (1973). A work is obscene under the Miller standard if (1) the work, taken as a whole, appeals to the prurient interest in sex; (2) the work portrays sexual conduct in a patently offensive way; and (3) the work, taken as a whole, does not have serious literary, artistic, political or scientific value.

5. 458 U.S. at 764.

6. Id. at 752, 773-74.

7. The Oklahoma statute also prohibits depictions of a minor as a "portrayed observer" of sexual conduct. Okla. Stat. tit. 21, § 1024.1.

8. Id. at §§ 1021-1024.4.

9. If the scenes at issue in the Tin Drum are deemed child pornography, scores of mainstream films also could fall prey to prosecutorial attacks. Even such acclaimed films as Prince of Tides or Bastard Out of Carolina-which depict scenes of child abuse- could technically be said to fall within the proscriptions of child pornography statutes.

10. See United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.) cert. denied, 484 U.S. 856 (1987).

11. Ala. Code § 13A-12-190.

12. Pub.L. 104-208, 110 Stat. 3009 (codified at 18 U.S.C. §§ 2251, 2252, 2252A, 2256).

13. Free Speech Coalition v. Reno, 1997 WL 487758, 25 Media L. Rep. 2305 (N.D. Cal. 1997); United States v. Hilton, 999 F. Supp. 131 (D. Maine 1998).