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Pornographers I Have Known
April 18, 2002
by John Bloom
NEW YORK, April 18 (UPI) -- Every pornographer I've ever met
has been a letter-of-the-law kinda guy. He wants to obey the
rules. He wants to cut down his legal costs. He wants somebody to
just talk to him about what the rules are.
But the Child Pornography Prevention Act, which was struck
down by the Supreme Court this week, is a textbook example of
what has happened again and again since 1954. That's the year the
nudist camp film "Garden of Eden" was banned as obscene by New
York authorities and then, three years later, ruled legal by the
appeals courts. The same thing happened with "I Am Curious
(Yellow)" in 1968 and "Deep Throat" in 1972 and 1976. "Deep
Throat," in fact, was the only film to be tried twice--once in
New York under the "socially redeeming value" standard, and then
again in Memphis under the "community standards" test.
And these are just the most famous ones. In dozens of other
less publicized prosecutions, the government has said, in effect,
"We're not going to tell you the rules in advance, but you just
broke them." And the courts have to come along, years later, and
say that no law was broken or that the law was unconstitutional.
In this case the pornographers, along with some erotic
artists and a nudist book publisher, weren't prosecuted, but they
went ahead and sued under the "chilling effect" principle,
essentially forcing the government to tell them what the rules
are. And it turned out that there weren't any rules, just the
usual fuzzy thinking about what might be obscene in hypothetical
cases.
This old old ritual we go through always happens when a
film, book or magazine that is somehow different from past films,
books and magazines is introduced. You would think that the
Bowdlers of the world would get tired of it after a while, but
nope. Local authorities go right ahead and seize it, ban it, or
try to legislate it out of existence.
In some cases they say they're doing this to protect society
from organized crime. (Banning porn has the opposite effect,
though. The only time the Colombo family got rich off porn is
when it was illegal.) In other cases they say they're protecting
neighborhoods from the unsavory characters that surround the porn
business. (Kind of a difficult argument to make in the era of
home video and the internet.) But in 90 per cent of the cases
they say, "We're doing it to protect children."
But in this case we already had the law protecting children,
and it was upheld 20 years ago. You can't make porn with minors.
Every major porn company in Southern California has extensive
screening systems to make sure their models and actors are 18.
This is actually a law the smut moguls like because it's precise.
The one time the child-porn law was violated by a major
American porn distributor came when porn performer Traci Lords,
with her mother's help, managed to convince producers she was an
adult when in fact she was only 16. As soon as this became known,
the distributor not only destroyed every negative, but recalled
every tape and sent liquidators to every video store to
systematically trash them. I've never seen such a successful
recall effort. Within six months the tapes were impossible to
get.
So that's not what this law was about. The key word in this
new law was not "child" or "pornography" but "prevention." It was
an attempt to ban things that "appear to be" or "convey the
impression of being" child pornography--even when it was not child
pornography. After you read the full opinion of the court,
you can see how this one was pretty much a no-brainer.
Two things were strange about the case, though. The first
oddity is that, when the case was filed in 1997, the presiding
U.S. District Judge in San Francisco, Samuel Conti, gave the
government a summary judgment. Summary judgment is essentially
telling the other side "you don't have a case" even before
testimony is heard. Obviously there were things to talk about
here, so what was that guy smoking?
But the even stranger aspect of the case is that John
Ashcroft's Justice Department kept using the words "virtual
pornography" to describe the target of the legislation. I've
never personally seen any virtual pornography and, believe me,
pornographers know how to send me their news releases. So to find
out what they were talking about, I had to look deep into Sandra
O'Connor's dissent, where it's more or less explained. And what's
meant by "virtual" porn is basically three things:
1) Actors who are 18 or over dressed up to look like they're
underage, and advertised as underage.
Okay, this is nothing new. There have always been entire
sub-genres of porn that do nothing else but make these kinds of
videotapes. What they do is hire 18-year-old girls (or, more
rarely, boys) who have not fully developed. They're physical late
bloomers. They put them in Catholic schoolgirl outfits, braid
their hair into pigtails, give them a teddy bear, and title the
tape "Daddy's Little Girl."
The problem with making this a crime is that it's a complete fiction. The girls
aren't Catholic schoolgirls. They are eighteen. And so to prosecute them for
pretending to be underage
is like prosecuting Charles Bronson for pretending to be a
vigilante serial killer in "Death Wish." It fails the legal test
of the 1982 decision, "New York v. Ferber," because the whole
purpose of the law was to protect children. And these tapes don't
have any children involved.
Of course, there's some dispute over what the definition of
children is anyway. In 48 states you can get married at 16, and
in 39 states you can have legal sex at 16, so in some places even
a 16-year-old girl having sex on video wouldn't appear to be
illegal. Probably the only reason the standard is set at 18 is
that national distributors don't want to get busted for crossing
state lines with 16-year-old porno in an 18-year-old state, but
the question is moot because the standard is 18.
Even Justice O'Connor, who supported part of the law, said
this one was a non-starter.
2) The second type of "virtual" porn is images generated
entirely by computer.
I didn't know what they were talking about with this one
until Justice O'Connor cited the movie "Final Fantasy: The
Spirits Within," directed by H. Sakaguchi and M. Sakakibara. This
is Japanese "anime," a sophisticated form of animation that uses
young wide-eyed fantasy women--usually schoolgirls--as its
heroines. They've been perfecting this type of film for twenty
years now, and although the movies are erotic and full of
violence, there is no way any of them could be mistaken for real
people. Japanese computer animation is good, but it's not that good. If it were possible to use animated characters instead of
real people without affecting porn profits, believe me, the whole
industry would switch to computer-generated images in five
seconds.
Even if it WAS that good, though, this "virtual" type is
even further removed from actual damage to children. It's created
entirely by computer geeks in office cubicles.
3) The third type of "virtual" porn is when you take a
photographic image of a real child and "morph" it with other
footage to simulate the child having sex.
This one is such a no-no that the pornographers didn't even
challenge it in the lawsuit, so it's still on the books as
legally forbidden. Among other things, it could cause problems
for the child in later life.
So what was this law really about in the first place?
According to the government lawyers, it was intended to get rid
of all porn that had anything resembling children in it. And
there were two reasons given: 1) it could be used to "entice"
children into becoming child porn performers, and 2) it would
cause pedophiles to get all worked up and go out and commit
crimes against children.
The Supreme Court said that it doesn't matter even if both
things are true. When a person uses a legal video to commit an
illegal act, you can't go back and make the video illegal. You
have to prosecute the guy for the enticement, not the object he
used to entice with. Any other standard would result in "How
about some candy, little girl?" turning into a criminal
prosecution of M&Ms.
As to the second reason, the court said that what's going on
in the mind of a person watching a porno video is none of our
business. Criminal thoughts are not crimes. Fantasies are not
actions. If we had any other standard, the Justice Department
could start prosecuting wet dreams.
But I actually don't think either of these reasons are even
true. Children are enticed into child pornography by adults they
want the approval of. They're enticed by people, not pictures.
And the President's Commission on Pornography, way back in 1969,
is still the most extensive study of the effect of porn on
criminal behavior. The commission's findings: there is none.
The simple fact is that everyone is against child porn. Even
pornographers are against child porn. Pornographers may even be more
interested in getting rid of child porn because they don't
want another Traci Lords Affair and they don't want the
collateral damage from that sort of crime. What the government
should do is go meet with those guys and discuss what the limits
are. Believe me, they would love to know. They're in Van Nuys.
I'd be happy to give Ashcroft their phone numbers.
© Copyright 2002
United Press International and John Bloom