Clinton seeks tough high court ruling in West Coast child pornography case

March 01, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Clinton administration, after facing months of conservatives' accusations that it was too tolerant of child pornography, will get a chance in the Supreme Court to show its toughness on the issue.

At the administration's urging, the court agreed yesterday to clarify the power of federal prosecutors to get convictions for those who buy or sell child pornography, even if the vendors or buyers do not know that the performers are minors.

That power has been put in doubt by a ruling two years ago by a federal appeals court in San Francisco. In a ruling that is now binding only in nine Western states, the appeals court said a 1992 federal law criminalizing the distribution or purchase of child pornography should be struck down because it did not require proof that the accused person knew that someone under age 18 was shown in films, photos or publications.

It is a violation of free-speech rights, the lower court said, to prosecute someone without his or her awareness that at least one minor was shown in sexually explicit material.

When the Supreme Court next fall reviews the lower-court ruling, the Justice Department will be arguing for a tougher interpretation of the 1992 law -- and, in doing so, is expected to gain at least partial support from a host of "family values" groups that formerly had been unrelenting critics.

Last fall, the administration -- switching from a Bush administration position -- opposed the use of federal child pornography laws against materials that did not show children's sex organs, even if the children were shown in sexually provocative poses.

"Family rights" groups then complained bitterly to the Senate, which passed, 100 to 0, a nonbinding measure criticizing the Justice Department's stance.

Conservative members of Congress also have gone into the lower courts to challenge the department's interpretation directly.

President Clinton publicly rebuked the department and ordered it to draft and send to Congress a new law against child pornography.

Two of the family rights groups that have been among the administration's strongest critics on the issue supported a Supreme Court review of the new appeal but argued for a stronger interpretation of the 1992 law than the one the administration advocates; the two groups used their legal papers to flail the administration for having "aided the victimization of children" by its earlier stance.

Those groups, the National Family Legal Foundation and the American Family Association, told the court that the government's earlier position "opened the door -- if the courts go along -- to the legalization of a whole category of child pornography that formerly was subject to prosecution.

The new case the court will hear next fall grew out of a federal investigation of reports that a California teen-ager, Traci Lords, was appearing in pornographic films.

That investigation led to the prosecution of a Los Angeles adult entertainment distributor, X-Citement Video Inc., and the operator of that firm, Rubin Gottesman. Both he and the company were convicted, but those convictions were overturned late in 1992 by the 9th U.S. Circuit Court of Appeals.

The Supreme Court's final ruling on the case is expected sometime next year.

In two separate orders in other cases, the court turned aside new legal challenges to the rights of women to control their medical choices during pregnancy.

In a case from New Jersey, anti-abortion activists urged the court to declare for the first time that a fetus has a constitutional right to life and to overrule the basic abortion decision issued in 1973, Roe vs. Wade.

That challenge grew out of an attempt by a Morristown, N.J., man, Alexander Loce, and other activists to stop his fiancee from having an abortion by chaining themselves together inside a clinic. They were convicted of illegal trespass. The woman had the abortion.

The court gave no reason for turning aside that case, or for its separate decision refusing to reopen the case of a woman from Chicago who refused for religious reasons to undergo a forced Caesarean delivery.

A state "public guardian" had unsuccessfully sought an order from state courts to require the Caesarean delivery, on the theory that the fetus was getting insufficient oxygen and might either die or be born with grave brain damage.

However, the child was born normally and is healthy, the mother's lawyers argued in challenging a Supreme Court review of the case.

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