No sooner did the Free Speech Coalition return from its annual lobbying effort than the state Senate's legislative analyst released SB 478 for consideration by the Senate.
Sen. Elaine K. Alquist (D-Santa Clara) introduced the bill, which (unlike similar federal legislation) doesn't have a name. If it passes, it would make it a crime in California to "possess or control matter that depicts a person under 18 years of age engaging in or simulating sexual conduct," and make "matter depicting a person under 14 years of age engaging in or simulating sexual conduct" either a misdemeanor or felony, though the bill doesn't spell out what criteria would indicate which level of charge would be applied.
Trouble is, the United States Supreme Court has already ruled on that issue, in the case of Free Speech Coalition v. Ashcroft: Adults who "appear to be" minors, and advertising that "conveys the impression" that minors are appearing in a sexually explicit movie, are protected by the First Amendment (unless found to be obscene for other reasons).
But California lawmakers seem to be in love with the term "depict," which means, according to the Compact Oxford English Dictionary, "to represent by a drawing, painting, or other art form." So an adult performer doesn't have to be under 18; he or she merely has to be playing a character that represents someone under 18 to be charged with a crime.
The Supreme Court doesn't see it that way. In the landmark child porn case, New York v. Ferber, the court held that, "[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative." The Court reaffirmed that holding in FSC v. Ashcroft, and such decisions are binding on California law.
It should be noted, however, that even the existing California laws that use the term "depict" have never been challenged under FSC v. Ashcroft, mainly because no one's been busted on them since that decision, but there is every reason to think that, were they to happen, those laws would be ruled unconstitutional.
Another major problem is that this law would make it entirely optional for either the prosecution or the defense to "introduce expert testimony to establish the age of the person, or that the person depicted, which is the subject of the prosecution, is a real or actual person." What that means is, the defense to this "pseudo-child porn" charge can bring in a busload of experts who can examine the image or video to their heart's content and opine, for dozens of reasons, why the "person depicted" either isn't real or isn't under 18, and the prosecution can simply say, "Jurors, use your common sense and your eyes" – and both of those arguments will be given equal weight under law!
The opening section of the law that this bill would amend, Section 311 of the Penal Code, allows the prosecution to use the "circumstances of production, presentation, sale, dissemination, distribution, or publicity" to "indicate that matter is being commercially exploited by the defendant for the sake of its prurient appeal" and would make such evidence "probative [that is, acceptable to be considered] with respect to the nature of the matter and may justify the conclusion that the matter lacks serious literary, artistic, political, or scientific value." (This is known as the "l.a.p.s. test," after the initials of the different forms of value.) It also allows the fact that the defendants knew that the image or movie depicts someone under 16 to be used as evidence of lack of l.a.p.s. value.
And forget about taking a photo of, say, a human thigh and creating the image of a person under 18 around it. The law now defines a "person under 18 years of age" to include "any matter that contains or incorporates any part of a natural person under 18 years of age, in any manner, to give the appearance that the person is engaging in or simulating sexual conduct."
And forget about giving the stuff away as well: "'Commercial' embraces all phases of commercial activity, and need not be undertaken for, or motivated by, profit."
Under this law, you wouldn't even have to be showing actual sex to be obscene: "'Obscene live conduct' means any physical human body activity, whether performed or engaged in alone or with other persons, including but not limited to singing, speaking, dancing, acting, simulating, or pantomiming, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest and is conduct that, taken as a whole, depicts or describes sexual conduct in a patently offensive way and that, taken as a whole, lacks serious literary, artistic, political, or scientific value." [Emphasis added.]
We're tempted to say, "Hollywood, look out!" But even state legislators aren't stupid enough to take on Beverly Hills' highest-powered lawyers: Sec. 311.11(e) states, "This section does not apply to drawings, figurines, statues, or any film rated by the Motion Picture Association of America [MPAA], nor does it apply to live or recorded telephone messages when transmitted, disseminated, or distributed as part of a commercial transaction."
The MPAA does not rate hardcore product.
Wow! Tax breaks for Hollywood that XXX companies don't get and immunity from obscenity prosecutions – life doesn't get much better!
And in case anyone is unclear as to what "sexual conduct" means, it's "any of the following, whether actual or simulated: (1) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or between humans and animals. (2) Penetration of the vagina or rectum by any object. (3) Masturbation for the purpose of sexual stimulation of the viewer. (4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer. (5) Exhibition of the genitals or the pubic or rectal area, of any person for the purpose of sexual stimulation of the viewer. (6) Defecation or urination for the purpose of sexual stimulation of the viewer. (7) Any lewd or lascivious sexual act as defined in Section 288."
"Simulated" is defined as "any act that gives the appearance of being sexual conduct," and that's another whole can of worms. Picture a character in a video who's been identified as under 18, nude and wearing a trenchcoat, and with her (or his) back to the viewer, opens that trenchcoat for another character to see. The audience doesn't get to see any nudity whatsoever – in fact, the character may in actuality be wearing a bikini – but that action fits the definition, under this law, of simulated child pornography!
And what punishment awaits those who would transgress this clearly unconstitutional law? In addition to a "maximum" $1,000 base fine, the courts can assess $5 for each unit of the "obscene" material the cops can find. (Video producers: How many pieces of your latest offering went out the door? 1,000 [x$5=$5,000]? 2,000 [x$5=$10,000]? Lucky for you, $10,000 is the maximum they can fine you under that section.) A defendant can also get "up to" six months in county jail ... plus "one day for each additional unit of material coming within the provisions of this chapter, and which is involved in the offense," up to a maximum of 360 days (=180 units of material), or both the fine and the imprisonment together!
But obscenity isn't the only worry: "Section 311.3 of the Penal Code is amended to read: 311.3. (a) A person is guilty of sexual exploitation of a child if he or she knowingly develops, duplicates, prints, or exchanges any matter that depicts a person under the age of 18 years engaged in an act of sexual conduct."
Hence, under this proposed law, one can be guilty of sexual exploitation of a child even when the youngest person involved is over 40! And this one's a $2,000 fine and a year in county jail – unless the perp has previously been convicted of some other sexual offense, actual or simulated, in which case they go directly to state prison!
There are several new provisions for people who knowingly employ or promote actual minors, or "while in possession of any facts on the basis of which he or she should reasonably know that the person is a minor" for sexual conduct, real or simulated, all of which are felonies and good for up to eight years in state prison – and there are "enhanced penalties" under Sec. 647.6 if the minor is under 14.
Similarly, Sec. 311.5 criminalizes any artist or P.R. person who "writes, creates, or solicits the publication or distribution of advertising or other promotional material, or who in any manner promotes, the sale, distribution, or exhibition of matter represented or held out by him to be obscene." The Los Angeles City Attorney's office tried to get Max Hardcore on that one for one of his flyers a couple of years ago, but nobody in the courtroom could understand the law well enough to figure out if he was guilty under it, so the judge directed a verdict of not guilty. (In fact, much of the prosecution's case against Max involved existing usage of the "depicts a person under 18" concept. Attorney Jeffrey Douglas successfully argued that since no one in Max's videos was actually under 18, that he should be acquitted. The jury agreed.)
But there's worse news for advertisers and distributors to be found in this law: "Sec. 311.10: Any person who advertises for sale or distribution any obscene matter knowing that it depicts a person under the age of 18 years engaged in an act of sexual conduct, is guilty of a felony and is punishable by imprisonment in the state prison for two, three, or four years, or in a county jail not exceeding one year, or by a fine not exceeding fifty thousand dollars ($50,000), or by both such fine and imprisonment." Do it twice and you're eligible for up to six years in the slammer.
And the clincher? Subsection (d): "It is not necessary to prove that the matter is obscene in order to establish a violation of this section." So a mere accusation that a work is obscene may lead to a fine and prison term under this section, even if the work itself is found not to be obscene!
Sec. 311.7 is best looked at in light of the fact that, even with the "definitions" given in this law, it is impossible to know whether any particular magazine or video is obscene until a jury says it is – so when this section says that "[e]very person who, knowingly, as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, publication or other merchandise, requires that the purchaser or consignee receive any obscene matter or who denies or threatens to deny a franchise, revokes or threatens to revoke, or imposes any penalty, financial or otherwise, by reason of the failure of any person to accept obscene matter, or by reason of the return of such obscene matter, is guilty of a misdemeanor," it's a provision that can only be applied after someone has been found guilty of distributing "obscene" material, because all sexually explicit material is presumed to be protected until the moment a jury says it isn't.
For these reasons, and many more, Sen. Alquist’s SB 478 is a poorly constructed bill that deserves to be stopped at the committee level.
Pictured: Sen. Elaine Alquist.
