Supreme Court Justice Potter Stewart when discussing obscenity once opined “I know it when I see it”. Although that never became the legal standard and rightfully so, for most of the people it served as a good basis for their decisions. But that belief of knowing it when seeing it apparently does not apply to the subject of child pornography. Based upon recent case law, and the prosecution of two south Florida men in the Northern District of Alabama on child pornography charges, Justice Potter Stewart would have to change his refrain to “I know it when I don’t see it”.
What are we talking about? Just recently, two south Florida men have been charged with promotion of child pornography based upon a modeling web site that they allegedly ran. Did the web site show children without clothes? No. Did the web site show children engaged in sexual activity? No. Did the web site show genitalia or breasts? No. Well, what did the web site show? Simply, the web site showed children of many different ages wearing cheerleading outfits, bathing suits and various other types of attire. Not one picture showed a bare genital or a bare body.
However, this lack of nudity and lack of showing or viewing genitals or the like, has not stopped the U.S. Attorney out of the Northern District of Alabama from indicting these two south Florida men on promotion of child pornography charges. The essence of the government’s contention is that although you can not see the genitals, somehow they are exhibited.
The government gets its backing to file these charges based upon a case in which there was a conviction for promotion of child pornography based upon clothed children. Although that case is bizarre in and of itself that a conviction could be had, the reason for that conviction according to the Court was that even though the children were all clothed, the videos of the children included a close up shot of their covered genital area for a long period time and then panned outward to get the entire child. Further, the advertisements for those videos all spoke of sexuality and of children engaging in sex.
The case in Alabama however, is quite different. They are not videos, but rather snapshots. There is no focusing in on the genitals but rather the picture is of the entire child. And lastly, and as important as all, every picture taken was taken with the blessings, approval and presence of the children’s parents.
What is very scary about this case, is that all of the pictures that you have taken of your children growing up, some of them with them in the tub, some of them dancing around in their underwear, some of them in their leotards, and yes some of them in the cheerleading outfits now are subjected to being prosecuted as child pornography if some U.S. attorney in some jurisdiction believes that they are child pornography and wants to prosecute. All those beauty contests for children, with the flashbulbs going off and the cameras clicking, are now subject to being classified as child pornography. Even those pictures of that cheerleader thrown up in the air with her skirt going up high now are subject to prosecution for child pornography.
We used to joke, that the Coppertone picture billboard, the one with the little girl having her bathing suit pulled down by the dog would technically now be child pornography. Now, we have to realize that even if that dog did not pull down the bathing suit bottom, that poster that prominately displays that little girl’s butt, might also now be classified as child pornography.
The craziest thing of this prosecution, is that the statute requires the exhibition of the genitals. Yet, when the genitals are covered how can they be exhibited? Somehow, the government wants to take that step and argue that you can exhibit genitals by covering them up. Taking this argument to its logical conclusion, we now have to worry about being arrested for indecent exposure. Obviously, now as we walk down the street clothed, law enforcement and this government believes that it has the right to say you’re not covered, you are exposing your genitals. There is a saying “the emperor has not clothes”. That saying is now becoming outdated as it doesn’t matter whether the emperor has clothes or not since we know what is underneath, he is now naked.
The thought of child pornography is certainly not appealing. However, the thought of living in a country where up is down and down is up and nudity is clothed and clothed is nude is much more scary then child pornography and much more a threat to the well-being of ordinary citizens in this country than the issue of child pornography ever will be.