The following article is an excerpt from Gauntlet magazine, issue #14 (Vol. II, 1997), pages 72-74. It is presented here with the permission of Barry Hoffman, publisher of Gauntlet. Copies of issue #14 -- Porn in the USA 2 -- are available for $6.95 + $2 postage and handling. Checks can be made checks payable to: Gauntlet, 309 Powell Rd., Springfield, PA 19064. Those interested in more information can see the Table of Contents at the Gauntlet magazine Web site.

"Protect the children!" With these apparently noncontroversial words, a new battlefront has been opened against the rights of adults to experience erotic materials. In the guise of concern for the most vulnerable, the same entities who brought you "family values" are attacking your right to read, view, and fantasize about sex.

FIRST EXAMPLE: On October 1, 1996, the Federal definition of child pornography was amended to encompass "simulated" child pornography. What does this mean? It means that if you want to create a movie in which a seventeen year old character has simulated (or actual) sexual activity, you are a child pornographer under Federal law, and subject to 10 years mandatory minimum imprisonment. The law does not require that actual human beings be depicted; i.e. animation, and other pictures are also criminalized. Moreover, the law criminalizes images in which the characters portrayed "appear" to be underage; it need not be explicit.

In other words, there is no difference under current Federal law between the movie Fast Times at Ridgemont High and a videotape of the actual rape of a six year old child. They are both child pornography under the law, carrying 10 years mandatory minimum.

I am neither inventing this, nor engaging in hyperbole, nor doing that lawyer thing of twisting the clear meaning of words and distorting intended meaning. This law, the amended 18 U.S.C. ( 2256, has been widely reported in the popular and trade press as preventing the release of the remake of Lolita. The spokesperson for author of the bill, Senator Orrin Hatch (Rep. Utah), has been quoted by the wire services as saying that while the law could be used against "mainstream" movies, she was "certain" that it would not be.

The result of this abomination is that X-rated film makers cannot deal with the subject of adolescent sexuality, even in serious ways such as addressing the antecedents of adult sexual behavior. Why? Because of the specter of pedophiles getting excited by a twenty year old portraying a high school student getting turned on by her teacher.

SECOND EXAMPLE: The Oklahoma City police, without a warrant, seized all copies of the twenty year old Academy Award winning foreign film, The Tin Drum, from both retail businesses, and private homes. Why? Because following complaints from a "Christian" televangelist and the Oklahoma Law Center for Family and Children, it was determined that the film contained child pornography. The judge made this "determination" without input from anyone other than the police (an ex parte hearing), and refused to issue a formal, written order.

How was this frightening abuse of the Federal Video Privacy Act, as well as the First, Fourth and Fourteenth Amendments explained? Oklahoma City police spokesperson said that they had "no choice, in order to protect the children of our community."

This particular form of "child pornography" involved an actual 12 year old actor simulating an act of oral copulation on an older female character. The scene shows the child's head buried in the crotch of the apparently naked girl. Watching the film at least as carefully as the accusers, I can say that it is impossible to determine if the child actor was actually filmed in the scene. Likewise it is impossible to determine if there was actual contact between the child and an actual crotch.

Again, this does not represent any distortions on the part of an extremist. This is straight from the today's headlines.

THIRD EXAMPLE: As in most states, California defines child pornography as the depiction of an actual minor engaging in actual or simulated sexual activity. When California enacted what was among the first child pornography laws in the nation in 1977, child pornography was defined as depictions of persons under fourteen years of age. It has been amended repeatedly so that now there is no difference in California law between filming a person seventeen years, eleven months and 29 days old having consensual sex, and the rape of a prepubescent child. This is irrational.

Indeed, under Hawaiian law, the age of consent is 14. It is therefore lawful for two fifteen year olds to make love. But if those fifteen year olds photograph themselves making love, they violate the Federal child pornography law -- the real law, not the new foolish one.

Why? To protect children? We are not protecting children. We are ceding to law enforcement and government bureaucrats whom we do not trust to issue business licenses control over our fantasy material and our most intimate life.

Further, under Federal law, the so-called Megan's Law, each of the fifty states have been extorted to require notification of neighbors when sex offenders are living in the neighborhood. In most states, therefore, possession of an old Traci Lords tape will require lifetime registration under the registered sex offenders act. As a practical matter, registration means an end to normal life. Would you continue to rent an apartment to someone whose face was being circulated on a police flyer as a registered sex offender? Would you employ such a person?

Not only are the punishments for possessing a nude or sexual photograph of a seventeen year old unduly harsh, since we choose as a society not to distinguish between a sexual photograph of a late teenager and a sexual photograph of a three year old, the new reality is that there is no end to the punishment. Beating a child carries serious punishment. But no one in their right mind would suggest that this is an offense for which society demands lifetime punishment. Yet possession of "child pornography" carries severe sanctions which literally last for the rest of the person's life.

We allow the forces which seek control over our personal life to terrorize us with the phantasm of pedophiles hunting down our children. In the name of "protecting children" we surrender the precious protections embodied in the Bill of Rights, protections for which people have quite literally given their lives.

The power to define the terms of a debate is the power to determine the outcome. It is not by chance that pro- and anti-abortion forces have redefined themselves as "pro-choice" and "pro-life." The current crop of "censors" wisely anoint themselves as "protectors of the family." The initiators of the Oklahoma City censorship of the Tin Drum call themselves the Oklahoma Law Center for Family and Children. There is a chapter of this organization in your state, too.

The sagacious Studs Terkel, commenting upon Michael Dukakis' pathetic showing in the presidential debate with then Vice President Bush, observed how Dukakis had allowed Mr. Bush to transform "liberal" into a shameful label. Studs lamented that Dukakis had failed to use the basic definition of the word. The dictionary informs a literate person of the meaning of "liberal." How different the current political debate would have been had Dukakis retorted, "Liberal? Are you not a liberal? Webster's defines 'liberal' as 'generous,' 'flexible,' 'favoring civil liberties,' and 'supporting policies favoring individual freedom.' Mr. Bush, to what part of 'liberal' do you object?"

Both in my personal belief system, and in the official policy of the adult entertainment industry which I represent, the sexual exploitation of children is an anathema. The adult entertainment industry's trade association, the Free Speech Coalition, has a standing annual reward of up to ten thousand dollars for information leading to the arrest and conviction of persons engaged in the production and/or distribution of child pornography.

As stated at a California State Senate hearing by a representative of the National Law Center for Family and Children in 1996, "There is no connection between the modern adult entertainment industry and the commercial manufacture or distribution of child pornography." Note that this statement came from the heart of the industry's harshest critics.

Yet despite this absolute absence of a relationship between child pornography and adult pornography, the censors always blur the connection. At a recent California Senate hearing, law enforcement officers described horrible abuse of children in which the molester used "child pornography and commercial pornography." They also insisted that pedophiles almost always possessed collections of adult pornography. Well, pedophiles also regularly possessed jeans, refrigerators and the Holy Bible. The correlation was blurred into a causation, where no causation exists.

True pedophilia is quite rare. That is, people whose sexual ideation results in the actual physical exploitation of children. The vast majority of child molestation occurs in the home, by close family members. Sexual materials enlisted to assist in this molestation can be anything, from sex education materials to Sports Illustrated. This can not reasonably justify the repression of adult communication.

The "Communications Decency Act" sought to limit the dialogue on the World Wide Web only to that suitable for children. Zoning and licensing laws regularly limit the access of adults to adult-only materials to times and places which are extremely inconvenient. The current approach is not only to limit locations to 1,000 feet from schools, churches, and parks, but now 1,000 feet from "traffic corridors regularly used by minors." The theory is that seeing the business from the outside (which may contain as little as ten percent adult product) will endanger the children. Or in the alternative, the theory is that if you rent an adult video for home viewing, you are substantially likely to rape a passing child.

The battleground for your access to adult material is being fought primarily on the local level. Communities enact restrictive legislation such as that described above, based upon irrational premises. The same nominally "conservative" political parties and groups which object strenuously to governmental interference with market forces and stridently decry intrusive regulation, favor requirements such as follow:

Minimum lighting levels of 20 foot-candles in the darkest corner of adult businesses (that is brighter than daylight);

Rules specifying minimum staffing per square foot of sales area, two armed, licensed security guards, round the clock, for a business with no history of crime;

Prohibition of employment of people with drug possession convictions;

Glass partitions between erotic dancers and patrons;

No tipping "directly or indirectly" of erotic dancers;

Prohibition of "deviant sexual devices" such as dildoes, masks, and whips; and, of course,

Exiling businesses with as little as ten percent "adult" materials to locations utterly unsuitable for retail activity.

All this in order "to protect the children."

Perhaps you have a sufficiently generous nature to question only the application of the "protect the children" movement, but not the underlying motives. Please note that the same advocates of draconian intrusions into your liberty "to protect the children" casually refer to 11 year old juvenile delinquents as "super-predators." Governor "Pete" Wilson of California recently proudly proclaimed that he had no qualms about signing a death warrant for a 14 year old child. These "children's advocates" are proud to exploit children as long as it stimulates voters' fears to grant them extraordinary power over their lives, and the lives of their neighbors and children.

"Protect the Children!" and "I have a list of 200 Communists currently in the employment of the State Department" and "The only good Indian is a dead Indian." These phrases from the darkest elements of the American character reflect the slipper slope from thought control to genocide. Although I do not fear that the witch hunts of the past will reemerge as the literal political executions from our history, I deeply dread the political force of these manipulators of our fears and exploiters of our instinctive parental concerns.

Do not surrender your individuality, no matter now compelling the call. "Fear is the mind killer." You will protect your children much more meaningfully by protecting their fundamental rights to read, speak, write, fantasize, and think.

Jeffrey J. Douglas is a Santa Monica lawyer, offering caring and successful criminal defense in both state and Federal courts. Mr. Douglas has also achieved notable successes in a diverse range of administrative and criminal defense matters such as professional license revocations, controlled substance cases, child molestation and fraud. Mr. Douglas is the Chair of the Board of Directors and Executive Director of the Free Speech Coalition, the trade association of the adult entertainment industry. He founded and operates Know Censorship, Inc., the Free Speech Coalition's database for tracking obscenity prosecutions throughout the United States. Nationally recognized as a First Amendment expert and advocate, he is a dynamic panelist and speaker.

Send email to Modemac
Return to First Online Church of "Bob" home page
Read the Guest Book