In a setback to the Reagan Administration's get-tough policy on child pornography, a federal appeals court ruled Thursday that producers of films depicting minors in sexually explicit activity can defend themselves against criminal prosecution with evidence that they did not know the actor was under 18.
Ruling in a case against two producers and an agent who hired teen-age porn queen Traci Lords, the U.S. 9th Circuit Court of Appeals rejected the Justice Department's argument that a tough new child pornography statute imposes strict liability on producers who film children engaged in erotic activities.
"While Congress may take steps to punish severely those who knowingly subject minors to sexual exploitation, and even those who commit such abuse recklessly or negligently, it may not impose very serious criminal sanctions on those who have diligently investigated the matter and formed a reasonable good-faith belief that they are engaged in activities protected by the First Amendment," the court said in a 2-1 opinion released in San Francisco.
The case involves two Los Angeles-area producers, Ronald Kantor and Rupert McNee, and modeling agent James Souter Jr. who hired the popular blue movie star in 1984 for a sexually explicit film, "Those Young Girls," unaware that Lords was only 16.
The three men were indicted on charges of violating a 1986 statute prohibiting the filming of minors engaged in sexually explicit conduct. The statute carries penalties of up to 10 years in prison and a $100,000 fine.
The defendants argued that they had no way of knowing the actress was a minor. Lords, who has acted in nearly 70 X-rated films and videos, had appeared in a Penthouse centerfold nearly a year earlier and had produced a driver's license indicating she was over 18.
Government prosecutors argued that the statute as written imposes strict liability and does not require any evidence that producers knew an actor was a minor.
But defense lawyers said that to impose such a requirement would be to hold film producers to a standard that would make them think twice about hiring any young actors for roles that might involve even partial nudity. The court, in an opinion written by Judge Alex Kozinski and joined by Judge William C. Canby Jr., concurred.
"Many works of substantial artistic or social value requiring the services of young-looking actors--for example, a movie graphically portraying the evils of child abuse or pornography--might never be produced if well-intentioned and scrupulous producers cannot protect themselves against very serious criminal sanctions for inadvertent and reasonable errors," the court said in a footnote.
In dissent, Judge Robert R. Beezer argued that the government's interest in protecting children from sexual exploitation is a "compelling government interest" that outweighs any potential threat of inhibiting production of materials protected by the First Amendment.
"Congress intended to protect children like Traci Lords, who try to pass as adults to appear in pornography . . . to protect (them) against their own immaturity, against the unreasoned, desperate choices children are wont to make," Beezer wrote.
The trial of Kantor and McNee had been postponed pending the outcome of the appeal, and their attorney, John H. Weston, said he believed charges should be dismissed in light of the ruling. Souter had pleaded guilty in March, 1987, but indicated he would withdraw his plea if the appeal was successful. Government lawyers said they had not decided whether to seek a rehearing or to proceed to trial against the two remaining defendants.
Weston applauded the majority opinion.
"It's written in such a way as to vindicate the important First Amendment concerns which we have been raising almost from day one, and the result, of course, is also to vindicate, although the court didn't discuss it, the very important due-process concerns that people should not be subject to conviction for very serious offenses in the absence of knowledge of a sufficient mental state," he said.
Although Weston predicted that cases such as the Lords case would be "exceedingly rare" because of producers' reluctance to use minors, Assistant U.S. Atty. Ronni B. MacLaren predicted that all prosecutions under the statute would be made more difficult by the court's ruling.
"What the defendants believed becomes an issue, and it wasn't an issue before," she said. "Now that the (mistake-of-fact) defense appears to be permissible, some producers may take more chances than they otherwise would have, so I think you may see this defense raised more often."