Issues involving minors can arise in two ways: explicit pictures of minors and minors looking at explicit pictures (or, for that matter, reading suggestive text). This article primarily focuses on the second circumstance, the more difficult of the two.
The first situation is simple: A visual depiction of a person under 18 engaged in sexual conduct is not protected by the First Amendment. Selling and even simply possessing it is illegal – period – and both can get you into incredibly hot water. In fact, putting minors in any types of photographs is a problem because minors do not have the capacity to sign contracts, except for “necessaries.” In most states (most notably, California), a minor is deemed not competent to consent to being photographed; consent of the parent or guardian is required.
The second circumstance is trickier because it involves the issue of when it can be considered illegal to allow a minor to read or view sexually oriented materials. Minors, you see, have some constitutional rights of free speech, and adults have limited constitutional free speech rights with respect to underage audiences. And this is intensely political because parents uniformly underestimate the breadth of their children’s knowledge of sexual matters. They learn in the media about the average level of sexual knowledge and activity of kids their daughters’ ages, but then say, “Our angel is different.”
The Supreme Court developed a somewhat ill-defined Miller-type test concerning exposing minors to what are typically called “harmful materials.” Ginsberg v. State of New York, 390 U.S. 629 (1968). Essentially, it has the same basic elements as the Miller test, except for a qualifier, “for minors.” Thus, typically in a prosecution for illegally furnishing harmful materials to minors, the prosecution must establish that the material: (a) has prurient appeal with respect to minors; (b) includes depictions that are patently offensive with respect to minors; and (c) lacks, with respect to minors, serious literary, artistic, political, or scientific value. And, as is the case with the Miller test, patent offensiveness and serious value are measured taking the material “as a whole.”
States have defined a crime along the lines of providing harmful materials to minors. For the most part, the statutes are modeled after the Georgia statute, the constitutionality of which was upheld by American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990), approving the following test:
(1) “Harmful to minors” means that quality of description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:
(A) Taken as a whole, predominantly appeals to the prurient, shameful, or morbid interest of minors
(B) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors
(C) Is, when taken as a whole, lacking in serious literary, artistic, political, or scientific value for minors
“Clear as mud,” you say? Attorney Jeffrey Douglas, chairman of the board of the Free Speech Coalition, calls it “Miller light.”
Now, if you are not aware of the fact that censors are constantly using the rhetoric of protection of children as a mechanism for ceasing distribution of all materials that they find objectionable, you are really new at this. One early example of this process was argued in Butler v. State of Michigan, 352 U.S. 380 (1957). The Supreme Court shot down the Michigan law, outlawing any literature “manifestly tending to the corruption of the morals of youth.” The explanation of the wrongfulness of this law was most eloquently explained by Justice Felix Frankfurter:
“It is clear on the record that appellant was convicted because [the statute] made it an offense for him to make available for the general reading public (and he in fact sold to a police officer) a book that the trial judge found to have a potentially deleterious influence upon youth. The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig.
We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the due process clause of the 14th Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society.”
Little has changed. Almost every act of Congress in recent decades that ratcheted up the punishment for federal obscenity offenses had the words “child” somewhere in its title, for example, the Child Protection and Obscenity Enforcement Act of 1988, which brought us the labeling and record-keeping law and obscenity forfeiture.
Parenthetically, so that this saga will not be incomplete, there is the noted case involving the on-air broadcast of George Carlin’s hilarious monologue titled “Filthy Words”: F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). This case largely resides in its own world because of the unique power to regulate the limited spectrum of the airwaves, which is beyond the scope of this article.
Then there was the battle over dial-a-porn in Sable Communications of California Inc. v. F.C.C., 492 U.S. 115 (1989) and Dial Information Services Corp. of New York v. Thornburgh, 938 F.2d 1535 (2nd Cir. 1991), cert. denied, 502 U.S. 1072 (1992). The end result of that was an approval of the same “indecency” standard approved in the Pacifica case involving comparable telephone broadcasts.
The Supreme Court has tackled this issue most recently in cases evaluating federal statutes aimed at filtering sexually oriented materials from minors. The first invalidated a component of the Communications Decency Act of 1996, the so-called “Exxon Amendment” to the vast communications “reforms” of that year: Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). The court struck down the law prohibiting dissemination to anyone under the age of 18 “any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent” or “any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” If you compare the above to the aforementioned Ginsberg test, you see that it flunks, and the Supreme Court thought so as well. “Obscene” is, of course, acceptable if the Miller standard is used because it is constitutional (thus far, but many hope not for long) for the government to outlaw transmission of legally obscene materials, even with respect to adults. But otherwise, Congress failed at trying to narrow the Ginsberg standard.
Congress’ next shot at keeping minors away from sexual material was the Child Online Protection Act (COPA). The Supreme Court looked at that one and, predictably, had considerable difficulty. The fact that the Court has faced the issue twice in Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002) and 542 U.S. 656 (2004), but it has yet to finally resolve it. Perhaps the most notable point about these two cases is that they both were decided during the scuffle over whether to issue an injunction pendente lite (“preliminary injunction” or “injunction pending trial”). The Supreme Court almost never considers a case until the trial is over—much less considers it twice! COPA, you see, changed the definition of materials that triggered the minor-shielding requirement, essentially adopting the approach that had been approved in the Ginsberg and American Booksellers cases.
The first time the Court looked at COPA, the Court held, in an 8-1 vote, that the lower court was wrong in throwing out the entire concept of “community standards” as applied to the Internet. That was relatively easy for the Court. The second time around brought about a significantly fractured Court, but the result was to remand the case for trial on the merits, finding that the trial judge did not abuse his discretion in issuing the preliminary injunction.
The district court is gearing up for the trial of that case, celebrating the 10th anniversary of the federal government’s stumbling, bumbling effort to insulate minors from Internet porn.
“Teach your children well.” Teach them intelligent design, teach them about the Bible, but dare not let them find out anything about science, human sexuality, or other things that might cause them to doubt either of the first two.
“And you, of tender years,
Can’t know the fears that your elders grew by,
And so please help them with your youth,
They seek the truth before they can die.”
–Graham Nash
Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online's offices, or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
