High court tangles with child porn

October 06, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Clinton administration's political goal of proving that it can be tough on child pornography got caught in a web of legal technicalities at the Supreme Court yesterday, leaving the future of a key federal law in doubt.

The administration has been trying to work its way out of a controversy prompted by a stance it took last year in an earlier Supreme Court case on child pornography.

It got a new opportunity yesterday as the justices held a hearing on the constitutionality of a 1984 law against peddling sexually explicit displays of children in movies, photos or magazines.

U.S. Solicitor General Drew S. Days III urged the justices to revive that law, which a federal appeals court struck down in 1992 in the case of a Los Angeles distributor of films featuring Traci Lords, who had appeared in many X-rated films before she was 16 years old.

The appeals court, overturning the distributor's conviction, had ruled that the law was invalid because it did not require prosecutors to prove that those who send or receive child pornography knew that minors were shown in the films or photos.

Without knowing that a performer was underage, distributors would not know they were breaking the law, the lower court said.

While some of the justices suggested options for reviving the law, there appeared to be no consensus that the law should be saved. The hearing became so bogged down in complexities that Mr. Days and the opposing lawyer seemed at times to be arguing against their own pleas.

Mr. Days and Stanley Fleishman, a Los Angeles lawyer who frequently defends those charged with obscenity or pornography crimes, found the justices inquisitive, skeptical and sometimes baffled about what Congress intended in passing the law.

Justice Sandra Day O'Connor said the law was "peculiar" because of its unusual structure, including its placement of commas. Written as it is, she said, the law might apply to the court's clerk for receiving X-rated videotapes that showed minors, or even to justices who looked at such tapes.

Mr. Fleishman suggested that the law was so broad that it would make all the justices "child pornographers" for examining such materials. When Justice Antonin Scalia disputed that notion, Mr. Fleishman jokingly volunteered to act as the defense lawyer for any member of the court.

Justice Ruth Bader Ginsburg suggested that the law might extend to an illustrated Bible, and Justice John Paul Stevens said that a person might violate the law by picking up newly developed photos without knowing what they showed.

Justice Scalia generally tried to bolster the law but did suggest that the court might want to apply the law just as it was written -- whether or not that made sense -- in order to "encourage Congress to be more careful" in drafting criminal laws.

Justice David H. Souter suggested that some of the ways the law might be interpreted might make it appear that Congress had simply "wasted ink" in passing it.

The hearing came 11 months after Congress and anti-pornography activists exploded in anger when Mr. Days urged upon the court a narrow interpretation of another federal law against filming children in sexually provocative poses. A unanimous Senate, and some 125 members of the House, criticized Mr. Days' plea, arguing that it would allow child pornography to go unpunished.

President Clinton took the unusual step of ordering the Justice Department to move more aggressively against child pornography.

Then, earlier this year, Congress passed a crime law that included a clause reprimanding Mr. Days for the administration position he outlined in the earlier case, and a provision to contradict that position.

During yesterday's hearing, Mr. Days resisted suggestions by Justice Scalia and Chief Justice William H. Rehnquist on ways to rescue the law by making it broader and tougher.

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