Child Porn Fight Focuses on 2 Photographers’ Books

The girl in the photograph is the archetypal kid sister. No more than 12, her body is a boy’s, but her face is pure woman. The contrast is so intense that you almost don’t notice: She’s wearing a defiant gaze and nothing else.

The photograph is alluring, arresting, fine art in the eyes of many. But in Alabama and South Carolina and Colorado and elsewhere, it’s the ultimate indecency. No matter how many museums hang it on their walls, the photograph is seen in parts of America as “child pornography.”

And one day soon the courts may see it that way too.

From Darwin to Mapplethorpe, from Elvis to 2 Live Crew, the frontiers of free speech are forever being explored and forever being fought over. So, two weeks ago, it seemed like just another day in the life of the 1st Amendment when an Alabama grand jury indicted Barnes & Noble bookseller for peddling “obscenity,” namely two coffee-table books from two reputable publishers.

But this is not your father’s 1st Amendment fight. This bitter debate about acclaimed photographers David Hamilton and Jock Sturges centers on both the intent and the content of their work, on their “backgrounds” as well as their foregrounds, on Hamilton’s unorthodox beliefs about young girls as much as Sturges’ disturbing behavior toward one.

Specifically, the Alabama grand jury cited “The Age of Innocence,” by Hamilton, and “Radiant Identities,” by Sturges, two books of large-format, high-quality photographs thought by thousands of critics and consumers to be socially acceptable, even wonderful.

But both books focus almost exclusively on naked girls, poised on the precipice of puberty. Sometimes the girls are featured suggestively, other times erotically. In a typical Sturges photograph, a girl about 10 years old lies back on a futon, her arms outstretched, her exposed genitals drawing the viewer’s eye to the center of the frame. In a typical Hamilton photograph, a girl of 13 gazes at her new breasts, touching them tentatively.

Even before Alabama slapped Barnes & Noble with a 32-count felony indictment punishable by a $320,000 fine, Tennessee charged the nation’s largest bookseller with misdemeanor violations of a state obscenity law, citing the same books, plus one by Sturges.

In Kansas, Virginia, Missouri, Florida, Nebraska, Pennsylvania and at least 20 other states, groups are pressuring local officials to do the same, urging police and prosecutors to review photographs by Hamilton and Sturges and declare them child pornography.

As such, the photographs would be unprotected by the 1st Amendment, since the U.S. Supreme Court has excluded child pornography from the rights of self-expression. But in its last landmark ruling on child pornography, 16 years ago, the justices left lower courts and lawmakers to grapple with what constitutes sexual depiction of children, along with the still murkier question of mitigating factors, such as artistic merit and redeeming social value.

Profiles, Portfolios Troublesome to Police

Now along comes the work of Hamilton and Sturges, two artists whose works sexualize children, two men whose profiles trouble law enforcement officers as much as their portfolios.

“This presents a case squarely in the middle, in which artistic merit is claimed to come precisely from the eroticism of children,” according to Jack Balkin, Knight professor of constitutional law and the 1st Amendment at Yale Law School.

In other words, one day there may be heated courtroom arguments not only over whether a work of art is obscene per se but also whether the artist is.

“It raises the question of whether you want to characterize these folks as sleazy panderers or serious artists,” Balkin says. “That’s really what’s at stake.”

Also at stake is Sturges’ freedom. For the second time in eight years, he’s the target of a U.S. Justice Department investigation. Department spokesman John Russell won’t comment, except to say “we’re reviewing the work” to see if it constitutes child pornography.

But the last time Sturges was investigated by the federal government, in 1990, police and federal agents stormed his San Francisco studio, where they claimed to find photographs of nude children (genitals “vividly displayed,” according to one newspaper account that quoted FBI agents) along with letters and photographs that suggested Sturges had engaged in a sexual relationship with a 14-year-old girl. It’s a relationship Sturges doesn’t deny.

Inspector’s Opinion Remains the Same

“I wondered when this would come up again,” says Thomas L. Eisenmann, an inspector for 18 years with the child-exploitation unit of the San Francisco Police Department.

It was Eisenmann who led that raid on Sturges’ apartment eight years ago, Eisenmann who stuck his foot in the door when Sturges tried to slam it shut. And it was Eisenmann, an amateur shutterbug, who kept copies of many Sturges photographs, which he now uses to train police officers about pedophiles.

“I thought it was child pornography,” Eisenmann says. “And I still do.”

But a grand jury didn’t. After Sturges’ life work was carted off and tagged as evidence, after his name was dragged through the mud, the grand jury decided not to indict. Why remains unknown because the files are sealed and no one at the Justice Department will discuss the case, pending the outcome of the current investigation.

If the furor seemed to cool after Sturges was cleared, in reality it was only simmering. Recently it started to bubble up again, in Wichita, Kan., and Palm City, Fla., and Glendale, Colo., all over the map, as conservative groups continued to trade outraged notes and news about Hamilton and Sturges and occasionally filed complaints with local officials, most of whom did nothing.

Then, last summer, Randy Terry got involved. The founder of the militant antiabortion group Operation Rescue heard about Hamilton and Sturges and went straight to his local Barnes & Noble.

“I honestly wasn’t believing that Barnes & Noble was selling child pornography,” Terry says. “My wife and I have been shopping there for years. It’s a great bookstore.”

But after reviewing the books, Terry and his wife decided there was no doubt Hamilton and Sturges were child pornographers. In August, the Terrys gathered a group of supporters and returned to the bookstore, tearing up the one Sturges book they could find. Police were called, Terry says, but no one was arrested, he claims, because the officers were more offended by the book than by the protesters.

That was the start of a firestorm. Fueled by Terry’s nationally syndicated radio show, people in dozens of cities began forming picket lines outside their local bookstores, sometimes raiding the shelves. Some who thought they’d never agree with Terry about anything were examining the books and finding themselves on his side.

“I would say definitely the photographs are child pornography,” says Ann Simonton, a former swimsuit model for Sports Illustrated, now the head of Media Watch, a group that monitors cultural exploitation of women.

In Wichita, a group called Kansas Family Research Institute led a petition drive to force the impaneling of a grand jury, which could happen in the next 60 days. David Payne, the group’s leader, says the issue is less complicated than it seems.

“There’s no such thing as constitutional protection for child abuse,” he says. “Regardless of the artistic merits of the work, such as technical quality and the composition of the photographs, the fact is, these are photographs of children, minors, depicted in nude and provocative poses.”

Despite the mounting pressure, Barnes & Noble vows to continue stocking Hamilton and Sturges. On the other hand, many of the company’s 483 stores reportedly keep the books hidden, locked away or stock them only at a customer’s request.

“What’s going on is basically very easy to understand,” says Sturges. “These extremists are basically using me as a political vehicle to create a higher profile for their organizations.”

He adds: “There’s nothing criminal in my work. The thing absent from these pictures that drives people nuts is shame.”

Sturges, 50, insists he has the consent and support of all his models, plus their parents. He says he meets them at nudist beaches and nudist colonies, then moves among them as a member of their extended family.

“The intent of these photographs is to be beautiful,” he says. “I find Homo sapiens to be an extraordinarily beautiful species.”

But in one case, Sturges’ family relationship with his young models went a step further. When he was 28 he conducted a sexual relationship with a 14-year-old named Jennifer Montgomery.

At the time, she was a New England boarding school student; he was her dorm counselor. They became intimate when he began using her as a model and remained so for years.

Today, Montgomery is 36 years old, a filmmaker living in Brooklyn, N.Y.. She says the episode with Sturges left her “damaged,” but she dealt with that by making a quasi-documentary in 1995 called “Art for Teachers of Children,” in which she depicts Sturges as equal parts stupid, sleazy and insincere, a man who used photography to get a young, chubby, confused girl to undress.

The film earned her some acclaim and a Guggenheim fellowship, but it also put her on the radar screen of law enforcement officers everywhere. A Pittsburgh grand jury investigating Sturges and his work recently subpoenaed her, probably not the last Sturges-connected subpoena she will receive, she says.

In some ways, Montgomery embodies the conflicted relationship many have with Sturges’ work, which is embraced by the cultural mainstream. (One Sturges photograph hangs in the Museum of Modern Art; another illustrates the cover of a new novel by National Book Award-winning Southern writer Ellen Gilchrist.) Montgomery acknowledges that what Sturges did to her was wrong and contends that his photographs of children are unequivocally sexual.

Still, she doesn’t think he should be prosecuted, because their relationship was “consensual.” And she has only high praise for the luscious quality of his prints.

“It’s confusing,” she concedes. “But that’s life. It’s not black and white.”

Sturges says Montgomery’s film “is loosely based on true events. But it’s very dramatically polarized by a transit into radical feminism that Ms. Montgomery has made.”

Though he discounts her film as artistically weak and riddled with distortions, particularly its portrayal of him as a vapid babbler and single-minded seducer, Sturges expresses only fondness for Montgomery.

“She’s a brilliant human being,” he says, adding that it was her rare genius that drew him to her when she was 14.

“I’m not a philanderer,” he says. “I’ve had four relationships in my life. That’s it. Period. She was the second. And it was at a point in time when I was getting divorced from my wife. I was vulnerable and making bad decisions. That’s obviously embarrassing now, but in light of my regard for her intelligence and the stature of her intellect--I’m human.”

For Hamilton, Little Girls ‘Erotic’

Unlike Sturges, who is far less commercially popular but more critically praised, the 65-year-old Hamilton says candidly that sex is a big part of what he does with the camera.

Little girls are “erotic,” he says, plain and simple. His photographs--most of which are hazy and colorful, a sharp contrast to Sturges’ stark black-and-white images--seek to elicit that eroticism.

Romantic captions further accentuate it. Passages from Anais Nin, Honore de Balzac and William Shakespeare, among others, blend and blur the innocence of subjects with their imminent sexuality.

“She is lovely, our nymph,” reads one caption, “and her potential is infinite. Heaven grant her the man who is worthy of her, and who comes to her bringing sex with tenderness. She has her virginity and her innocence; she will, if she is fortunate, trade them in due course for experience and love.”

The caption’s author? David Hamilton.

The girl in a Hamilton photograph tends to be around the same tender age as Lolita, the 12-year-old siren invented by Vladimir Nabokov in his classic 1955 novel. Sexual depiction of such a girl, Hamilton says, causes discomfort only in America, where the latest film adaptation of “Lolita” can’t even find a distributor, and in England, where sexual repression is the norm. In most of Europe, he says, no one thinks twice.

Speaking by phone from his Paris apartment, the reclusive Hamilton says in a rare interview that he feels only indifference toward those who condemn him. He calls them “the great unlaid” and mocks their efforts to censor his work by mentioning his massive commercial appeal: One million copies of his books have sold so far, he boasts. And the Hamilton Web site is among the most popular in the world.

About the charge that many of his photographs are coveted by pedophiles, a charge leveled by law enforcement officers and prosecutors, he renounces all responsibility.

“I’m a victim of my own success,” he says.

Hamilton, who met his 30-year-old wife when she was one of his 13-year-old models, draws a bright line between erotic photography of children and child pornography, and he says the public does as well. If they don’t, ultimately, or if the courts won’t, then he’ll accept his fate as another misunderstood artist.

“If Lewis Carroll were alive today he would be in jail!” Hamilton says of the author, a notorious pedophile, who wrote “Alice’s Adventures in Wonderland.” “He was a wonderful man!”

1st Amendment Experts Offer Defense

Regardless of Hamilton’s rhapsodies about the erotic nature of girls, regardless of Sturges’ affair with Montgomery, 1st Amendment experts say both men deserve the same stringent protection as Nabokov, whose novel is among the triumphs of modern literature.

“Are we prepared to ban books because we don’t like the authors’ backgrounds?” asks Kenneth Paulson, executive director of the 1st Amendment Center at Vanderbilt University. “Content is all that matters.”

Not all legal scholars agree. Some say that, ultimately, the intent of Hamilton and Sturges may matter just as much as the content of their work. Courts have said in the past that “lascivious” display of a child’s genitals is one of the criteria that can be used to discern child pornography, and some say lasciviousness can be inferred from an artist’s motives as well as his oeuvre.

Is he trying to titillate a deviant audience? Is he trying to seduce his underage models? Is he creating a tool of seduction for others?

“The courts have said that in order to decide if a photograph is lascivious, jurors can consider intent,” says J. Robert Flores, a former federal prosecutor in the child-exploitation section of the Justice Department and now the senior counsel at the National Law Center for Children and Families. “In my opinion, these are the types of pictures that represent the greatest risk to children.”

Behavior May Become Factor

Some day, therefore, prosecutors may use Montgomery to show a pattern of behavior in Sturges’ past. Or they may cite quotations from Hamilton’s books to prove that even if they’re not aimed at those who try to seduce children, they can’t help but appeal to such people.

In that scenario, lawyers for Hamilton and Sturges must fight to keep everything outside the photographs also outside the courtroom, says Stanley Fleishman, who once defended author Henry Miller against government censorship.

“It should not be involved at all,” he says. “You’re talking about not whether this guy’s a bad man particularly. . . . What you have is a photograph. It either is [child pornography] or it isn’t.”

Fleishman says the same kind of people who hounded Miller are now after Hamilton and Sturges. As a legal issue, he says, child pornography is the latest rage because it’s still uncharted waters.

“Child pornography has become big,” he says, “because most prosecutors accept the notion that any sexual material distributed to and among adults is protected, so now everything is in the name of protecting kids. If you’re protecting kids, you can play the game.”

And the longer the game continues, the more Hamilton and Sturges stand to win. Every time the controversy hits another city, both photographers say, their books fly off the shelves.

“It’s a reliable irony,” Sturges says, “that when people seek to repress things, they wind up promoting them.”

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Times researcher Edith Stanley contributed to this story.