Child Pornography Law Won’t Be Pressed--for Now : Arts: The Justice Department delays implementation for at least 90 days--time to allow a federal judge to rule on the statute’s constitutionality. Arts, publishing and civil liberties groups contend it limits artistic freedom.

The Justice Department agreed Tuesday temporarily not to enforce a controversial new federal child pornography law that has been challenged by arts, publishing and civil liberties groups as opening the way for felony prosecutions over artworks that are not legally obscene.

The agreement not to enforce the new statute--which was passed by Congress in the waning days of the session last October--was accepted in Washington by U.S. Dist. Court Judge Stanley Sporkin. Earlier this week, Sporkin indicated he would issue a restraining order prohibiting enforcement of the new law if the Justice Department did not voluntarily agree to refrain temporarily from filing prosecutions under its provisions.

The court action came after a dozen groups and individuals filed a lawsuit late last week asking Sporkin to declare the entire statute unconstitutional. The plaintiffs range from the American Library and American Booksellers associations to two Los Angeles-based photographers who produce images of nude women for publication in Penthouse and similar magazines.

Also joining in the challenge are two artists’ organizations, the National Campaign for Freedom of Expression and the National Assn. of Artists Organizations. Both are based in Washington. Spokespeople for the artists’ groups charged that enactment of the new child pornography statute, which was signed by President Bush in November, amounts to a continuation of a series of attacks directed against artists over the last two to three years.

The law under challenge requires anyone who produces or distributes still photos, videos or films that depict many forms of nudity or sexual activity to maintain detailed records of the names, ages and addresses of any models or actors depicted. It also requires that any book, magazine, video or film including those images contain a label identifying the name and address of the person who maintains records on the models and actors.

Failure to keep the records and include the label is a felony even, according to aides to two key senators who sponsored the new legislation, if the material in question does not violate local or state obscenity laws.

The law applies only to “actual” sexual activity and exempts “simulated” sex, but lawyers challenging it argued in court papers filed with Sporkin that, in many artistic settings, only the model knows if such behavior is real or faked.

“This law creates a body of work that is exempted from the First Amendment,” said Oren Teicher, associate executive director of the American Booksellers Assn. and president of the Booksellers Foundation for Free Expression. “If a photograph, book or video does not carry (this label), it no longer has First Amendment protection, even though it may not be obscene.”

David Ogden, a Washington lawyer representing the American Library Assn., contended that the new law could have been brought to bear against artists and photographers whose images were caught up last year in the nationwide controversy over grants made by the National Endowment for the Arts. Specifically, Ogden asserted, several homoerotic images by the late Robert Mapplethorpe could have been targeted if they were not properly labeled, even though a jury in Cincinnati found the photos did not violate Ohio’s strong child pornography and obscenity laws.

Whether the statute could have applied directly to Mapplethorpe remained open to question since the photographer died of AIDS in 1989--before the effective date of the new law. But Ogden and other attorneys contended the statute is so ambiguous that even work created before its effective date could be challenged.

“This statute could be used by a local government to go after an artist (whose work) was sexually explicit to a degree that they were not going to tolerate,” said Charlotte Murphy, executive director of the National Assn. of Artists Organizations. “They could put a restraining order on an exhibition. They could go through an artist’s collection.”

Murphy charged that the statute could be used to single out work depicting sexually explicit gay and lesbian themes. She contended that enactment of the new statute was part of a pattern of increasing limitations on artistic freedom across the country.

The Justice Department was to have produced written regulations to implement the new law by late last month, but never did so. Tuesday’s agreement set a schedule in which the Justice Department agreed to delay implementation of the rules for at least 90 days--enough time to allow Sporkin to rule on a request that he hold the entire statute unconstitutional.

At issue is what amounts to the latest episode in a controversy over attempts to clamp new restrictions on child pornography that began in 1988, when Congress included anti-child porn amendments in an omnibus federal drug bill. As enacted then, the law would have required any photographer using nude models engaging in any form of sexual or intimate activity to prove every model included in such images--beginning at a date 12 years before the law was enacted--was not a minor.

The original law was challenged by many of the same groups involved in last week’s lawsuit against the new statute. In 1989, a federal judge in Washington threw out key provisions of the controversial original law and the Justice Department appealed.

The appeal was still pending last year when Sens. Strom Thurmond (R-S.C.) and Dennis DiConcini (D-Ariz.) introduced a revised version that, they said, was intended to cure constitutional problems. Aides said no hearings were ever held on the bill and that it was enacted in October as a result of late-night negotiations in a House-Senate conference committee over a larger crime bill.

DiConcini, said a key aide, “feels strongly about the issue of child pornography and did see this as a way to prevent some child pornography from being produced.