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Federal case may redefine child porn

Justice Department indicts a photographer over a site that posted photos of clothed minors--a case that has raised First Amendment issues.

Jeff Pierson is a photographer whose action shots of hopped-up American autos laying waste to the asphalt at Alabama dragways have appeared in racing magazines and commercial advertisements.

Pierson's Web site boasted he has the "most wonderful wife in the world and two fantastic daughters." And until recently, he ran a business called Beautiful Super Models that charged $175 for portraits of aspiring models under 18.

In a federal indictment announced this week, the U.S. Department of Justice accused Pierson, 43, of being a child pornographer--even though even prosecutors acknowledge there's no evidence he has ever taken a single photograph of an unclothed minor.

Rather, they argue, his models struck poses that were illegally provocative. "The images charged are not legitimate child modeling, but rather lascivious poses one would expect to see in an adult magazine," Alice Martin, U.S. attorney for the northern district of Alabama, said in a statement.

Pierson's child pornography indictment arises out of an FBI and U.S. Postal Inspection Service investigation of so-called child modeling sites, which have been the subject of a series of critical congressional hearings and news reports in the last few years. An August article in The New York Times, for instance, called the modeling Web sites "the latest trend in child exploitation."

Jeff Pierson
Credit: Southern Illusions
Jeff Pierson,
photographer

In addition to Pierson, the U.S. attorney also announced indictments against Marc Greenberg, 42, Jeffrey Libman, 39, partners in a Fort Lauderdale, Fla., business called Webe Web, which in turn ran the now-defunct ChildSuperModels.com site. It was one of the larger sites that featured photographs of child models, allegedly from Pierson, and became the target of a report on Florida's NBC6 affiliate suggesting that it was a magnet for pedophiles.

First Amendment scholars interviewed Wednesday raised questions about the Justice Department's attack on Internet child modeling. They warned that any legal precedent might endanger the mainstream use of child models in advertising and suggested that prosecutors' budgets might be better spent investigating actual cases of child molestation.

Amy Adler
Credit: NYU
Amy Adler,
NYU law professor

"I don't know what the DOJ's trying," said Lee Tien, an attorney at the Electronic Frontier Foundation, a civil liberties group. "The best I can say is that it's puzzling that they would devote investigative and law enforcement resources to something (like this). This is a far cry from what folks normally think of as child pornography."

The Web sites that prompted the indictments are now offline. But copies saved in Google's cache and through Archive.org show the photographs in question depicted girls wearing everything from sweaters to, more frequently, swimsuits and midriff-baring attire. Parents appear to have given their consent.

Richard Jaffe, Pierson's attorney, said he could not immediately comment because he was in court on Wednesday. Jill Ellis, a spokeswoman for the U.S. Attorney's Office in the northern district of Alabama, confirmed to CNET News.com that no nudity was involved. An arraignment for Pierson has been scheduled for December 14 before U.S. Magistrate Judge Robert Armstrong.

No sex, no nudity
Because no sex or nudity is involved, the prosecutions raise unusual First Amendment concerns that stretch beyond mere modeling-related Web sites: children and teens in various degrees of undress appear in everything from newspaper underwear advertisements to the covers of Seventeen and Vogue.

Alice Martin
Credit: DOJ
Alice Martin,
U.S. Attorney

When actress and model Brooke Shields was 15 years old, for instance, she appeared in a racy Calvin Klein jean advertisement featuring the memorable line, "Nothing comes between me and my Calvins." Shields also appeared nude at 12 years old in an Oscar-nominated movie called Pretty Baby that was set in a New Orleans brothel. Similarly, 14-year-old Jodie Foster, wearing revealing clothing, played a pre-teen prostitute in Martin Scorsese's Taxi Driver.

Sally Mann, named Time magazine's "photographer of the year" in 2001, was attacked by critics for featuring nude images of her own children in a book called Immediate Family. Famed photographer Jock Sturges' photos often feature nude boys and girls on the beaches of California and France--images that are far more revealing than those of swimsuit-clad youths.

All of that makes the distinction between legal child photography and illegal child pornography a particularly subjective one. It may come down to, as the Justice Department's Alice Martin put it, seemingly ephemeral factors such as the poses the model strikes and the camera angles the photographer chooses.

"Prosecuting cases on this borderline presents difficult First Amendment problems," said Amy Adler, a New York University law professor who has written about pornography, culture and the law. "The sexy teenager is sort of a mainstream trope. It's very different from babies being molested, and child pornography law doesn't make a distinction."

Define illegal pose

In a 1986 case called U.S. v. Dost, a federal judge suggested a six-step method to evaluate the legality of images. Here's an excerpt from the opinion:

1. Whether the focal point of the visual depiction is on the child's genitalia or pubic area.
2. Whether the setting of the visual depiction is sexually suggestive.
3. Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child.
4. Whether the child is fully or partially clothed, or nude.
5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.
6. Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

That's no exaggeration: The same section of federal law punishes a pedophile who makes a video recording of a baby being molested, as well as someone who possesses an image of a 17-year-old striking an unlawfully racy pose.

The explanation for that lies in a criminal statute called 18 USC 2252A, which Pierson is accused of violating. Child pornography is defined as the "lascivious exhibition of the genitals or pubic area of any person" under 18 years old.

Until a 1994 case called U.S. v. Knox, judges interpreted that language to mean either images of nude minors or of minors having sex. In that case, however, the 3rd U.S. Circuit Court of Appeals extended that definition to include videotapes of girls in leotards, and upheld Stephen Knox's conviction on child pornography charges.

"The genitals and pubic area of the young girls...were certainly 'on display' as the camera focused for prolonged time intervals on close-up views of these body parts through their thin but opaque clothing. Additionally, the obvious purpose and inevitable effect of the videotape was to 'attract notice' specifically to the genitalia and pubic area. Applying the plain meaning of the term 'lascivious exhibition' leads to the conclusion that nudity or discernibility are not prerequisites for the occurrence of an exhibition within the meaning of the federal child pornography statute," the 3rd Circuit wrote.

Courts have also looked to a 1986 case called U.S. v. Dost for guidance on what's "lascivious" and what's not. Among the factors they evaluate: whether the focus is on the child's genitalia or pubic area; whether the image suggests sexual coyness; and whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

A crackdown's mixed results
Prosecutors have tried to target child modeling Web sites before, with mixed results.

In 2002, Colorado prosecutors charged James Grady with more than 719 felony charges--ranging from sexual exploitation of children to contributing to the delinquency of minors--for operating TrueTeenBabes.com. The Web site bills itself as "America's premier teen glamour publication" and sells subscriptions for access to nonnude shots of models between 13 and 17 years old.

TrueTeenBabes.com drew the attention of local television reporters, whose reporting sparked a police investigation. But a jury acquitted Grady, and he subsequently filed a lawsuit asking for $10 million in damages for wrongful arrest, according to the Rocky Mountain News. TrueTeenBabes.com is back online today.

In an unrelated prosecution of two Utah men, Matthew Duhamel and Charles Granere currently are facing federal criminal charges of child pornography. They're accused (click for PDF) of running a child modeling site--again, no nudity is alleged--that featured minors in lingerie.

They filed a joint motion in July, which was rejected, asking that the case be dismissed in part on First Amendment grounds. "It seems clear," the motion said, "that the genitals or pubic area of the person must be actually exposed or visible to fall within the proscription against exhibition."

The U.S. Congress tried to clear up some of the ambiguity around what is and what isn't legal but never actually enacted legislation.

In 2002, Rep. Mark Foley announced a bill called the Child Modeling Exploitation Prevention Act that would effectively ban the sale of photographs of minors. But under opposition from civil libertarians and commercial stock photo houses like Corbis, it never left committee. (Foley, of course, is the same politician who resigned in September after disclosures of inappropriate conversations with a teenage page.)

That leaves judges and juries faced with the difficult task of making distinctions between lawful and unlawful camera angles and facial expressions--an exercise that proves to be impossible to do without running afoul of the First Amendment.

"How do we distinguish pictures like these (on child modeling sites) from the everyday photos that our culture tolerates and even prizes?" said Adler, the NYU law professor. "For instance, who's modeling in Vogue? A lot of those people are 15 and in scantily clad or suggestive photos."

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