Back in 1996, Chris Finan, president of the ABFFE, was present when the U.S. Senate held a hearing on the Child Pornography Prevention Act (CPPA), the law whose very constitutionality was challenged in oral argument before the U.S. Supreme Court late last month.

At the time, Finan was working for the Media Coalition, an association that defends the First Amendment rights of booksellers, publishers, librarians, and other producers and distributors of constitutionally protected works.  He had helped to prepare the testimony of Judith Krug, the executive director of the American Library Association's Office for Intellectual Freedom.  Krug was chair of the Media Coalition at the time and was testifying on behalf of its members.

Even earlier than that, in 1982, in the case of New York v. Ferber, Finan had urged the Supreme Court to overturn a New York law that widened the definition of child pornography to include all photographs of minors engaged in sexual conduct or "lascivious" display of the genitals.  The members of the Media Coalition warned the Court at the time that, by removing the exemption for works with serious artistic value, the law could lead to attacks on works that clearly are not child pornography.

That prediction came true when, several years ago, anti-pornography groups waged war against booksellers who sold the works of the photographer Jock Sturges.  In the view of these groups, Sturges' photos of nude girls were child pornography.  One group led by Randall Terry, the former anti-abortion activist, invaded bookstores in at least 10 cities around the country and ripped up copies of the offending books.  Meanwhile, James Dobson's Focus on the Family pressured police around the country to indict bookstore owners on child pornography charges.  Two owners of Barnes & Noble stores in Alabama were indicted.  The charges are still pending.

In Ferber, the Supreme Court justified banning all pictures of minors engaged in sexual conduct on the grounds that these were not a form of speech but depictions of crimes being perpetrated against children.  The Court specifically declared that it was not banning visual depictions of sexual conduct involving adults portraying minors because no minors were being harmed.  Thus, presumably, the new interpretation was no obstacle to a movie adaptation of a book such as Lolita, Night Moves, or Taxi Driver, so long as the persons playing the children were adults.

Predictably, anti-pornography groups read the Supreme Court's decision as an open invitation to defame works that depicted fictional minors, including adults who appear to be minors.  They also claimed a right to ban non-photographic depictions--drawings, paintings, and sculptures.  Finally, they proposed to broaden "lascivious display" to prohibit depictions of the buttocks of any minor or the breasts of a female minor.

The initial version of the CPPA was so broad that it engulfed legitimate, non-pornographic works.  Finan pointed out that Elizabeth Taylor's naked buttocks were on display in Cleopatra and that similar scenes involving adults portraying minors could be found in The Last Picture Show, Midnight Cowboy, The Prime of Miss Jean Brodie, Carrie, and Equus.  A list of fictional minors depicted in some state of nudity must include the girl in the Coppertone ad whose bathing suit is being tugged off her bottom by a dog, as well as paintings and sculptures by Donatello, Corregio, Titian, Degas, and Picasso.

Despite the plethora of good examples on their side, the free-speechers knew as they entered the hearing room that the odds were against them.  When something as universally condemned as child pornography is at issue, it takes courage to raise objections as Judy Krug did that day.  Before the testimony began, each of the senators present expounded at length on his detest for child pornography and his support for measures to suppress it.  But Krug refused to crumble, and by the time her testimony was complete, the committee said that it had no desire to sweep classical paintings and sculptures into the category of child pornography.

Nevertheless, the final version of the CPPA banned sexual depictions involving several classes of fictional minors--adults who are portraying minors, realistic drawings of minors, and computer-generated images of minors.  The ability of child pornographers to digitally create "virtual child porn" using the faces of real or real-looking children generated much of the political momentum behind the CPPA.  The sponsors were clear that their goal was to ban anything that might appeal to the prurient interest of a pedophile.

So we come once again to the Supreme Court to ask for a clarification: is everything that the CPPA claims to be child pornography really child pornography?  Or did our representatives in their fervor to pander toward a paranoid society once again trample the rights of the individual?  What is at issue in the case that is now before the Supreme Court is not a question of child pornography but of freedom of speech.  The government already has more than enough power to prosecute people who produce and sell photographs of children being sexually exploited.  Extending its censorship power to the realm of fictional minors impinges directly on the world of ideas, removing the sexuality of minors as old as 17 as a legitimate subject of representation.

During oral arguments in the Supreme Court on October 30, several of the justices revealed that they understood this.  Stephen Breyer pointed out that the law in question could apply to films like Traffic and Titanic.  John Paul Stevens added Romeo and Juliet to the list.

The point that Finan, the ABFFE, and other first-amendment rights groups take is not only commendable, it's absolutely essential to a free and open America.  When fringe groups can dictate the rights of all Americans, society is no longer open but is instead prisoner to the ideas and rationalizations of a vocal few.  Imagine a society in which a mother and father are prosecuted for taking photographs of their three-year-old splashing in the bathtub.  Or a producer who is arrested after presenting a portrayal of child abuse in a polygamist family in Utah.  Or a writer who is jailed for producing a book outlining the motivations and rationale at work within the typical pedophile's mind.

We at the American Society of Authors and Writers believe that the Supreme Court got it right the first time around.  By saying that child pornography was anything of a sexually related nature that harmed a child was absolutely correct.  Now the court has to confirm and clarify its own decision and shoot down the notions of the fringe lunatics who would put all mention, thought, or portrayal of nudity and children--whether or not harmful to anyone--behind bars.

Are people who become sexually aroused at the thought of participating in a sexual act with a child sick, perverted, criminal?  Should they be thrown in jail for expressing their sexual fantasies in drawings, computer animations, or words?  If so, then what about those people who express their thoughts about robbing a bank, raping a woman, committing suicide, murdering an employer, having a same-sex relationship, or embezzling corporate funds?  How about the man who fantasizes about marrying a first cousin?  Or a woman who swoons at the thought of being bound, gagged, and used sexually?

When this society comes to a point where individuals are no longer allowed to express their views--no matter what the majority opinion might be--while doing no real harm to any individual, then we have lost everything that everyone who has come before us has fought so hard to gain.  A free society without the right to dream, to write, to paint, to photograph, to fantasize, to talk, to express is no free society at all.  It is a conformist state.  And in a conformist state, people are summarily accused, arrested, imprisoned, and in other ways removed from society forever.

And if you doubt that it could happen in this day and age, read the horrifying predilections in Mein Kampf by its equally horrifying author, Adolph Hitler.

And I ... am D. J. Herda.

D. J. Herda is the author of the upcoming historical novel, DARK SEEDS: HEMINGWAY OUT OF HAVANA.  He is also President of the American Society of Authors and Writers (http://amsaw.org), an organization made up of authors, writers, editors, publishers, agents, directors, producers, and other media professionals who rely upon the printed word in the creation of quality literature and entertainment.  He is a member of the Author's Guild and a former member of the American Society of Journalists and Authors and the National Press Club.  He has published more than 80 books and several hundred thousand articles, short stories, columns, interviews, plays, and scripts.
 

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