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Since Ferber, federal courts, so disquieted [165] by the dangers of child sexual abuse, have tolerated statutes that define child pornography in increasingly broad and subjective terms. The law upheld in Ferber prohibited using a child in a "sexual performance," meaning "any play, motion picture, photograph, or dance" which included "sexual conduct." Sexual conduct was in turn defined to mean "intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals."[166]
The
federal 1984 Child Protection Act adopted most of this definition from Ferber but changed the word
"lewd" to "lascivious." [167]
It is this latter term, "lewd" or "lascivious exhibition of the genitals," that launched the most problematic aspect of defining child pornography. Determining whether a photo depicts a child engaged in intercourse or masturbation, for example, would appear to be a relatively straightforward task. But what exactly is "lascivious exhibition of the genitals"?
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How does it differ from an "innocuous"
[168] photograph of a naked child - a family photograph of a child taking a bath, or an artistic masterpiece portraying a naked child
model? It is at this margin of child pornography law, where its prohibitions
bump up against "innocent" speech, that, ironically, the definition of
child pornography has grown.
In
1990 in Osborne v. Ohio, the Court held constitutional a statute prohibiting
child nudity if there was a "graphic focus on the genitals," a term that had
been previously unknown in the Court's child pornography or obscenity cases.
[170] The test seems to invite prosecutions of pictures in which a child's
genitals appear at the center. Thus, a finding of graphic focus may depend on where a
photographer aims his camera, making a determination of constitutional
protection depend on what could be an accident of pictorial composition.
[171]
Lower courts have contributed to the expansion of the definition.
In the 1994 case of United States v. Knox, the Third Circuit held that a depiction could constitute a "lascivious exhibition of the genitals" even if a
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child is wearing clothes. [172] The defendant, Knox, possessed videotapes that zoomed in on the genital areas of clothed girls. The Third Circuit approved Knox's conviction under federal law, deciding that the definition of "child pornography" did not require child nudity. [173]
The Circuit held its ground, even after the Supreme Court remanded the case to the Circuit for reconsideration in light of a brief by the Solicitor General of the United States in which he argued that the Circuit had gone too far, and that the statute required at least "discernibility" of the genitals if not outright nudity. [174]
The
Knox case caused a "political firestorm"; it prompted front-page
headlines,
[175] a resolution passed by Members of Congress condemning the Solicitor
General's interpretation, and the unusual step of the members of Congress filing
a brief in the case.
The test identifies six factors that are relevant to the determination of whether a picture constitutes a "lascivious exhibition"; it includes such questions as
| "whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity" and |
| "whether the visual depiction is intended or designed to elicit a sexual response in the viewer." [177] |
If we pushed the definition in the evolving case law to the extreme, it seems to threaten all pictures of unclothed children, whether lewd or not, and even pictures of clothed children, if they meet the hazy definition of "lascivious" or "lewd." Thus, the capacious law has proved an excellent vehicle for prosecutorial vigilance. Some of the recent cases suggest
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just how far child pornography law has drifted.
(Sturges's studio had been ransacked by an FBI raid in 1993, but a grand jury had refused to indict him for child pornography violations.) [179]
Oklahoma brought a child pornography prosecution against a video store for renting the 1979 Academy award-winning film The Tin Drum based on a novel by Gunter Grass. [180]
Hollywood studios reportedly shunned the remake of the film Lolita based on fears of criminal prosecution; despite the filmmakers' careful use of body doubles for all controversial scenes, it took a year, as well as significant cutting, to find a studio willing to release the film. [181]
A sixty-five-year-old New Jersey grandmother and respected photographer was arrested for taking nude photographs of her two four- to six-year-old granddaughters. [182]
The incident is the latest in a number of arrests where parents or family members face charges for pictures that they claim were innocent family snapshots or artistic endeavors. [183]
Recently,
an NPR reporter who says he was researching a free-lance article on police
tactics in pursuing child pornographers was himself arrested for receiving child
pornography. The defendant moved to dismiss, raising a free speech claim, but
the court rejected the motion. It held that even "well-intended uses
of" images of child pornography are unprotected.
[184]