November 08, 2001 ABFFE Update – November 12, 2001 Free Speech, Not Child Porn, Is Issue Before Supreme Court By Chris Finan, ABFFE President I was present in 1996 when the U.S. Senate held a hearing on the Child Pornography Prevention Act (CPPA), the law whose constitutionality was challenged in oral argument before the U.S. Supreme Court late last month. At the time, I was working for the Media Coalition, an association that defends the First Amendment rights of booksellers, publishers, librarians, and other producers and distributors of constitutionally protected works. I had helped prepare the testimony of Judith Krug, the executive director of the American Library Association's Office for Intellectual Freedom. Judy was chair of the Media Coalition at the time and was testifying on behalf of all of its members. This was not the first time we had opposed a child pornography law. In the 1982 case of New York v. Ferber, we had urged the Supreme Court to overturn a New York law that widened the definition of child pornography to include all photographs of minors engaged in sexual conduct or "lascivious" display of the genitals. The members of the Media Coalition warned the Court at the time that by removing the exemption for works with serious artistic value the law could lead to attacks on works that clearly aren't child pornography. The truth of this prediction was dramatically confirmed several years ago when anti-pornography groups waged war against booksellers who sold the works of the photographer Jock Sturges. In the view of these groups, there was no question that Sturges' photos of nude girls were child pornography. One group led by Randall Terry, the former anti-abortion activist, invaded bookstores in at least 10 cities around the country and ripped up copies of the offending books. Meanwhile, James Dobson's Focus on the Family pressured police around the country to indict bookstores on child pornography charges. Two Barnes & Noble stores in Alabama were indicted. (The charges are still pending.) In 1982, we also warned that anti-pornography groups would continue to try to widen the definition of child pornography. The CPPA was the legislation we had feared. In the Ferber case, the Supreme Court had justified banning all pictures of minors engaged in sexual conduct on the grounds that these were not a form of speech but depictions of crimes being perpetrated against children. The Court specifically declared that it was not banning visual depictions of sexual conduct involving adults portraying minors because no minors were being harmed. Thus, presumably, the new interpretation was no obstacle to a movie adaptation of a book like Lolita as long as the person playing Lolita was an adult. However, anti-pornography groups read the Supreme Court's decision as an invitation to ban works that depicted fictional minors, including adults who appear to be minors. They also wanted to ban non-photographic depictions--drawings, paintings, and sculpture. Finally, they proposed to broaden "lascivious display" to prohibit depictions of the buttocks of any minor or the breasts of a female minor. The initial version of the CPPA was so broad that it was easy to find examples of the legitimate works that it would prohibit. We pointed out that Elizabeth Taylor's naked buttocks were on display in Cleopatra and that similar scenes involving adults portraying minors could be found in The Last Picture Show, Midnight Cowboy, The Prime of Miss Jean Brodie, Carrie, and Equus. Our list of fictional minors depicted in some state of nudity began with the girl in the Coppertone ad whose bathing suit is being tugged off her bottom by a dog and included works by Donatello, Corregio, Titian, Degas, and Picasso. Despite the plethora of good examples on our side, we knew as we entered the hearing room that the odds were against us. When something as universally condemned as child pornography is at issue, it takes courage to raise objections as Judy Krug did that day. Before the testimony began, each of the senators present expounded at length on their detestation of child pornography and their support for measures to suppress it. But Judy refused to be intimidated, and she can claim much of the credit for convincing the committee to drop the ban on nude breasts and buttocks. The committee also said it had no desire to sweep classical paintings and sculptures into the category of child pornography. However, the final version of the CPPA banned sexual depictions involving several classes of fictional minors--adults who are portraying minors, realistic drawings of minors, and computer-generated images of minors. The ability of child pornographers to digitally create "virtual child porn" using the faces of real or real-looking children generated much of the political momentum behind the CPPA. Nevertheless, the sponsors were clear that their goal was to ban anything that might appeal to the prurient interest of a pedophile. What is at issue in the case that is now before the Supreme Court is not child pornography but free speech. The government already has more than enough power to prosecute people who produce and sell photographs of children being sexually exploited. Extending its censorship power to the realm of fictional minors impinges directly on the world of ideas, removing the sexuality of minors as old as 17 as a legitimate subject of representation. During oral argument in the Supreme Court on October 30, several of the justices revealed that they understand this. Stephen Breyer pointed out that the law could apply to films like Traffic and Titanic. John Paul Stevens added Romeo and Juliet to the list. Once again, ABFFE has joined the Association of American Publishers and other members of the Media Coalition in filing a friend of the court brief. Maybe this time the Supreme Court will listen. Last Summer of Reason Selling Well Interest in books about Islamic fundamentalism appears to have boosted sales of the late Tahar Djaout's Last Summer of Reason, a novel about a Muslim bookseller who confronts growing repression under a Taliban-like regime. Published last month by Ruminator Books in Minneapolis, Last Summer of Reason is the final work of Djaout, an Algerian author who was killed by Islamic extremists in 1993. After his capture, one of the attackers said Djaout was killed because "he was a communist and wielded a fearsome pen, which could have an effect on Islamic sectors." Djaout was an awarding-winning author of 11 books of poetry and fiction. He was 39. The manuscript of Last Summer of Reason was found among Djaout's papers after his death. It was published in France in 1999. Ruminator has published the first English translation with a foreward by Nobel Prize-winner, Wole Soyinka. Part of the proceeds will be donated to ABFFE. Pearl Kilbride, the publisher of Ruminator Books, reports that Last Summer of Reason has already received good reviews in many newspapers, including USA Today and Newsday. It is scheduled to be reviewed in coming weeks by the New York Times, The New Yorker, the Boston Herald, and NPR. Last Summer of Reason is also a November/December Book Sense 76 pick. Last Summer of Reason (hardcover, $19; ISBN 1886913501) is the story of bookstore owner Boualem Yekker who lives in a country being taken over by a radically conservative party known as the Vigilant Brothers, a group that seeks to control every element of life according to the laws of their stringent moral theology. No work of beauty created by human hands is allowed to rival the glory of the fundamentalists' god; once treasured art and literature become despised. Boualem stands up to the new regime, using his store and his personal history as weapons against the puritanical forces. ABFFE Participates in Three Supreme Court Cases The U.S. Supreme Court will decide three important cases affecting the First Amendment rights of booksellers in the term that started last month. On October 30, it heard oral argument in Free Speech Coalition v. Ashcroft, a challenge to the Child Pornography Prevention Act of 1996. ABFFE joined the Association of American Publishers and other members of the Media Coalition in filing an amicus brief urging the Supreme Court to overturn the law. (The case is discussed above.) ABFFE is also playing a role in Ashcroft v. ACLU and City of Los Angeles v. Alameda Books. Ashcroft v. ACLU The Court will once again decide whether the government can censor constitutionally protected material on the Internet if it is "harmful." The Court was virtually unanimous in striking down the Communications Decency Act in 1997, which banned computer transmission of "indecent" material, even in e-mail. Congress then passed a narrower restriction, the Child Online Protection Act (COPA), which bans the display of material on the Web that meets the legal definition of "harmful to minors." However, a federal court has invalidated COPA on the grounds that it prevents adults from accessing constitutionally protected material. ABFFE, Powell's Books, and A Different Light Bookstore are among the plaintiffs in the case. Oral argument is scheduled for November 28. City of Los Angeles v. Alameda Books ABFFE is also urging the Court to curb legislative efforts to widen the definition of an "adult" bookstore. The process has reached a point where in some places a general bookstore can be regulated and forced to locate in areas zoned for adult businesses if it receives as little as 10 per cent of its income from the sale of material with sexual content. In 1986, the Court ruled that adult businesses could be regulated because of their harmful effects on surrounding property owners. However, that decision applied to businesses deriving almost all of their income from the sale of sexually explicit material. ABFFE and the members of the Media Coalition have filed a friend of the court brief urging the Court to require legislators to prove that a business has harmful secondary effects before they can regulate it. Oral argument is scheduled for December 4.     Topics: Free Expression, News - Bookselling,