Administration to Fight Ruling on Child Porn Statute
The Bush Administration will appeal a federal court ruling striking down provisions of a 1988 child pornography law that imposed stringent record-keeping requirements on magazine and book publishers, film producers, photographers and possibly even painters and sculptors.
The decision to appeal the May 16 ruling by U.S. Dist. Court Judge George H. Revercomb was disclosed in legal documents released Monday by the Justice Department.
Amy Brown, a Justice Department spokeswoman, declined to detail the grounds on which the appeal will be filed. The government decision was disclosed in a one-paragraph appeal notice filed late Friday afternoon in federal court in the District of Columbia, where the Revercomb ruling originated. The appeal will be heard by the U.S. Court of Appeals.
The ultimate verdict on the constitutionality of the statute could directly affect any art medium in which nude models or actors are employed.
Specifically, provisions of the law overturned by Revercomb require that anyone who produces books, magazines, other periodicals, still or motion-picture films, videotapes and other media showing explicit sexual conduct must maintain complete records of the verified identities of all models and actors retroactive to work begun after Feb. 6, 1978.
The Justice Department decision came on the next to last day the government could give notice of its intention to appeal.
The filing ended weeks of speculation among civil liberties attorneys about whether the Bush Administration would accept Revercomb’s ruling--that key provisions of the pornography law are blatantly unconstitutional--or attempt to overturn his decision in a higher court. Defendants in the attempt to overturn the law include the Justice Department, the FBI, the U.S. Postal Service and the Treasury Department.
Oren Teicher, a spokesman for Americans for Constitutional Freedom--a group of plaintiffs in the lawsuit--said that the media affected by the ruling were “not surprised” by the government’s decision to appeal. Teicher noted that Revercomb, who was appointed by former President Ronald Reagan, is a conservative Republican who might have been expected to be sympathetic to the law.
“We’re confident that Judge Revercomb’s decision will withstand the Court of Appeals,” Teicher said. “We’re fairly confident we’ll get similar decisions (to his) as we proceed.”
In his decision striking down the record-keeping provisions of the law, Revercomb concluded that it had the effect of requiring all those handling affected media to maintain records proving they personally verified the age of anyone shown engaging in real or simulated sex acts or even a “lascivious exhibition” of the genitals.
The requirement, Revercomb ruled, could require anyone who printed a photograph, film, book or magazine to personally verify that every subject of its images was at least 18 and had produced written documentation of every name he or she had ever used. Individual film editors and even workers who develop film or process videotape could be required to personally verify the ages of all subjects depicted.
Work affected by the law, Revercomb concluded, could potentially include every visual image that depicts frontal nudity. Revercomb ruled that the statute, which was enacted by Congress as part of an omnibus drug-abuse law, could be read to include non-photographic art.
A coalition of media organizations filed suit to have the pornography act declared unconstitutional shortly after President Bush signed it into law last November.
The coalition challenged what Revercomb agreed were onerous restrictions on material that is clearly protected by the First Amendment and which, he said, goes substantially beyond any definition of child pornography. Among plaintiffs are the American Library Assn., American Booksellers Assn., Magazine Publishers of America, International Periodical Distributors Assn., American Society of Magazine Editors and American Society of Magazine Photographers.
David Ogden, a Washington lawyer who is a top strategist on the media groups’ legal team, said that while it is commonplace for the Justice Department to press an appeal of statutes that are invalidated by trial-level courts, the media groups were disappointed that the government chose to pursue the pornography matter.
“I guess I was hopeful because this law is so clearly unconstitutional that cooler heads would prevail,” Ogden said.
Ogden said that though control of child pornography is the statute’s objective, the law essentially would make it impossible--or so expensive as to be impracticable--to publish and distribute photographs that depict adult nudity.
Ogden said such mainstream media as motion pictures and Playboy magazine could be directly affected by the pornography law. And if a judge concluded that the “depiction” of nudity did not have to be photographic, the potential reach of the statute “is mind-boggling.”
“It clearly applies to videotapes and motion pictures and books of photographs,” Ogden said. “If it applies to any other media, it’s even more terrifying.”
Despite the potential reach of the law, awareness of the statute and its requirements among photographers who could be most directly affected appeared to be slight. Tom Bianchi, a Los Angeles photographer and painter who practiced law for 10 years before turning to art as a career, said word of the potential effects of the law, should either the appeals court or the U.S. Supreme Court uphold it, has only recently begun to spread in the art community.
Bianchi is well known as a photographer of male nudes, but he said he uses no underage models. Bianchi said his analysis as an artist and former attorney led him to conclude that the law is “just a pointless gesture.”
The law provides for seizure by law enforcement agencies of facilities used in production of child pornography.