Those 148 images were charged as depicting what 18 U.S.C. Section 2256(2)(E) defines as a "lascivious exhibition of the genitals or pubic area of any person," which is ostensibly a type of "sexually explicit conduct." Yet, none of the girls were naked, nor were they wearing translucent or tight clothing that revealed even the contours of their genitals. In the most basic sense, nothing was being "exhibited" except facial expressions, poses and (at most) the same flesh that would be on view were the models wearing dry bathing suits. Any "lascivious exhibition" that went on was purely imagined, whether by the viewer or the government.
If the above explanation hasn't made it clear, try this one: "Exhibition" means "an exhibiting, showing or presenting to view," and "exhibit" means "to offer or expose to view; present for inspection." (See Random House Dictionary of the English Language (Unabridged), 1979.) "Expose" means "to uncover or bare to the air, cold, etc.; to present to view, exhibit, display;" while "view" means "to see, behold." The sole antonym listed in the Random House Dictionary for "exhibit" is "conceal," a word which means "to cover or keep from sight."
Thus, the claim that there can be an "exhibition" of the genitals or pubic area when those parts of the body are covered by clothing is literally a contradicion in terms. To exhibit something requires that the thing being exhibited is actually seen -- that is, not covered, but exposed to view.
How, then, did "lascivious exhibition of the genitals" get to be applied to images of clothed models?
This is the first of a two part series.
United States v. Knox and the History of the Child Pornography Law.
In George Orwell's novel, 1984, protagonist Winston Smith reads to the reader from the fictional "The Theory and Practice of Oligarchical Collectivism," a tome which reveals the techniques used by the Big Brotherhood to indoctrinate its citizens. One of those techniques is "blackwhite," which is "the habit of impudently claiming that black is white, in contradiction to the plain facts." The text continues:
Applied to a Party member, it means a loyal willingness to say that black is white when Party discipline demands this. But it means also the ability to believe that black is white, and more, to know that black is white, and to forget that one has ever believed the contrary. This demands a continuous alteration of the past, made possible by the system of thought which really embraces all the rest, and which is known in Newspeak as doublethink.The October 15, 1992, decision of United States v. Knox, written by Judge Cowan of the Third Circuit Court of Appeals, is a prime, real-life example of the process of blackwhite. Here, Judge Cowan begins with this startling claim: "Applying the plain meaning of the word 'exhibition' leads to the conclusion that nudity is not a prerequisite for the occurrence of an exhibition." United States v. Knox, 977 F.2d 815, 820 (3d Cir. 1992). From there, Judge Cowan sets out to re-write the legislative history, not just, in Orwell's words, "to believe that black is white" but also "to forget that one has ever believed the contrary." Witness the duplicity upon which the U.S. government has relied ever since:
Congress appears to have repudiated its earlier intention to confine the statute's coverage to nude exhibitions. Further, Congress failed to articulate anywhere it its extensive legislative history any desire that the statute, as enacted, prohibit only nude portrayals.U.S. v. Knox, 977 F.2d 821.
Black is not white. 2 + 2 does not equal 5.
Quite to the contrary of the Third Circuit's pronouncements, the legislative history of the child pornography law, 18 U.S.C. Section 2252 (et seq.), makes absolutely clear that the law was written and, at least up until Knox, interpreted as criminalizing only depictions of minors whose genitals or pubic areas were nude and who were engaged in exhibiting their genitals or pubic areas in a manner which is deemed "lewd" (now "lascivious").
The original legislative proposal to the law, introduced in 1977 by the late Senator William V. Roth Jr. (R-Delaware), S. 1011 (the "Roth" bill), would have criminalized "nudity, if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction." That provision was roundly criticized by lawyers who testified before Congress as well as by the Carter Justice Department. A letter dated June 14, 1977, from Assistant Attorney General Patricia Wald to Senator James O. Eastland, then-Chairman of the Committee on the Judiciary, specifically recommended that
The term "nudity ... depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction" is also troublesome. This definition differs from the "average person" text for obscene material set forth in Miller v. California, supra, and it would be difficult to determine by what standard the "sexual stimulation or gratification" could be assessed. We would suggest as an alternative definition "lewd exhibitions of the genitals," a phrase used by the Chief Justice in Miller v. California, 413 U.S. 15 (1973), to describe one of a variety of types of conduct which could be prohibited under state obscenity statutes. Congress could make clear in the legislative history of the bill what types of nude portrayals of children were intended to be encompassed within this definition.(Emphasis added.) Protection of Children Against Sexual Exploitation, Hearings Before the Subcommittee to Investigate Juvenile Delinquency of the Committee on the Judiciary, United States Senate, 95th Congress, First Session, May 27, June 16, 1977, pp. 77-78.
The Justice Department's recommendation to narrow the proposed ban to a certain type of nudity was adopted by Senators Mathias and Culver in S.1585 (the "Mathias-Culver" bill). The difference between the Roth and Mathias-Culver bills was the subject of University of Pennsylvania Professor Paul Bender's extensive testimony before Congress. Professor Bender, who was former general counsel to President Nixon's President's Commission on Obscenity and Pornography (1970), testified why the Mathias-Culver bill was preferable to the Roth bill vis-a-vis 18 U.S.C. Section 2256(2)(E):
More importantly, it is the definitional section of the Roth bill. It uses the conduct which it prohibits as having children engage in prohibited sexual acts and then it defines the prohibited sexual acts in a number of ways. Most of these definitions are okay. But some of them strike me as vague and so vague as to perhaps be unconstitutional. ... The nudity provision is a little bit troublesome also. It says "nudity, if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction." I have a problem with that in knowing whose purpose they are talking about and when that has to be the purpose. Is the notion of this that the person taking the picture has to take the picture for the purpose of stimulating or gratifying someone else sexually, or is it enough if the picture is simply used that way for that purpose by somebody later, even if that was not the purpose of the person who took the picture.(Emphasis added.) Protection of Children Against Sexual Exploitation, Hearings, p. 103.
Nudity generally, I think, may be a bit overbroad in terms of the purposes of the legislation. I would not want to classify as child abuse anyone who takes a picture of a child without any clothes on. Lots of people do that of their children. They send it to the child's grandparents in interstate commerce. I don't think you would want to cover that. So I think it's right to qualify "nudity." But this qualification [in the Roth bill] strikes me as vague.
As used in the statute, the phrase "lewd exhibition of the genitals" has a plain meaning, but not the one Judge Cowan was talking about. Rather, it refers to a type of sexual conduct on the part of the model depicted which is intended to exhibit and draw attention to his or her naked genitals. Such was the understanding of members of Congress and every witness who appeared at hearings during 1982, when Congress was in the process of amending the federal child pornography statute in the wake of the Supreme Court's decision in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348 (1982), which eliminated the requirement that depictions of minors engaged in "sexually explicit conduct" be obscene before they could be proscribed.
Senator Arlen Spector, mindful of the problems of constitutional overbreadth which might be posed by an outright ban on non-obscene depictions of "lewd exhibition[s] of the genitals or pubic area", proposed that such exhibitions continue to be protected if they possess literary, artistic or scientific merit. In discussing this proposal, Bruce Rich, on behalf of the Association of American Publishers, suggested that the exception should apply to the entire range of "sexually explicit conduct," not merely to "lewd exhibitions of the genitals." Mr. Rich, like the members of Congress who were considering changes in the law, naturally assumed that the statute "lewd exhibition of the genitals" meant nude genitals:
We say, first, that it is not enough merely to tag on the literary, etc., exception to exhibitions of nudity, as Senator Spector's own proposal would suggest ... We would suggesting having the literary, artistic, etc. exemption to modify the entire range of conduct which would be otherwise prohibited.Child Pornography, Hearing before the Subcommittee on Juvenile Justice of the Committee on the Judiciary, United States Senate, 97th Congress, December 10, 1982. Serial No. J-97-152, pp. 19-20.
In 1986, when Congress once again contemplated amending the child pornography laws, comments by Senator Roth accurately reflect that what Congress had intended to criminalize were nude depictions of a certain character. Senator Roth, speaking in support of H.R. 5560, the "Child Sexual Abuse and Pornography Act of 1986," the House counterpart to his bill, S. 2398, referred to "child pornography" as "photos, films and videotapes depicting nude young children engaged in explicit sexual behavior." (Emphasis added.) Congressional Record, Senate, October 18, 1986, S. 17296. (Senator Roth would later join a chorus of Senators who claimed disingenuously that the law was intended to cover non-nude depictions.)
Finally, whenever the Supreme Court has used the phrase "lewd exhibition of the genitals," that phrase has denoted only exhibitions where the genitals were nude. A few leading examples:
- In Miller v. California, 413 U.S. 15 (1973), where the Court assessed whether the phrase "lewd exhibition of the genitals" was constitutionally acceptable as a category of banned speech, Chief Justice Burger wrote, in the affirmative, that "Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places."
- In Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750 (1974), where the Supreme Court held that the film "Carnal Knowledge" could not be "obscene" as a matter of constitutional law, Justice Rehnquist inquired whether the film contained hardcore sexual acts or "lewd exhibitions of the genitals" and found that "[w]hile the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including 'ultimate sexual acts' is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatsoever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standard."
- In New York v. Ferber (1982), Justice White observed that the phrase "lewd exhibition of the genitals," which was under scrutiny in the context of child pornography, "is not unknown in this area and, indeed, was given in Miller as an example of a permissible regulation." The Supreme Court knew that the phrase meant, as Justice White stated, "visual depictions of children ... lewdly exhibiting their genitals" and went on to admonish the New York Courts from widening "the possibly invalid reach of the statute by giving an expansive construction to the proscription on "lewd exhibition[s] of the genitals." (How the Supreme Court ended up permitting the federal courts to do that in United States v. Knox will be examined below.)
Jurisprudence Before Knox.
Prior to the Knox case, no one had ever been indicted or convicted for making, let alone receiving or possessing, depictions of minors whose genitals and pubic areas were fully covered by clothing. Every case involving allegations of child pornography involved depictions of minors engaged in actual sexual conduct or whose genitals or pubic areas were nude and exposed to view.
The sole authority relied on by the Third Circuit for its finding that "lascivious" depictions of minors included depictions in which the minor's genitals are fully covered was United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986). In Dost, the court outlined six factors ("among any others that may be relevant in the particular case") to be applied in determining whether an exhibition of the genitals or pubic area is "lascivious." Those factors included such considerations as where and by whom the photograph was taken, the focal point of the image and the demeanor of the subject. The fourth Dost factor, "whether the child is fully or partially clothed, or nude," according to the Third Circuit, "rests on the implicit assumption that a clothed exhibition of the genitals is criminalized under the statute." U.S. v. Knox, 977 F.2d at 823.
The Third Circuit's risible conclusion is based on two intentional errors. It must be observed at the outset that depictions of clothed minors were not at issue in Dost. Both girls photographed in Dost were "totally nude": the first was photographed on a bed "in a variety of positions ... with her genitals and breasts fully exposed;" the second was photographed on a nude beach in a supposedly contorted pose so that "[h]er pubic area is completely exposed, not obscured by any shadow or body part." United States v. Dost, 636 F. Supp. at 833. The Dost court's discussion of the fourth factor makes crystal clear its belief that the statute required that the genitals actually be uncovered, i.e., nude:
For example, consider a photograph depicting a young girl reclining or sitting on a bed, with a portion of her genitals exposed. Whether this visual depiction contains a "lascivious exhibition of the genitals" will depend on other aspects of the photograph. If, for example, she is dressed in a sexually seductive manner, with her open legs in the foreground, the photograph would most likely constitute a lascivious exhibition of the genitals.... On the other hand, if the girl is wearing clothing appropriate for her age, the visual depiction may not constitute a "lascivious exhibition" of the genitals, despite the fact that the genitals are visible.(Emphasis aded.) United States v. Dost, supra, 636 F. Supp. at 832.)
The Third Circuit's first error, then, was its choice to ignore the fact that the Dost court's entire discussion was premised on the subject's genitals being exposed -- i.e., possibly only partially covered (and therefore partially nude), but certainly not fully covered by clothing.
The second error was the Third Circuit's misuse of the fourth Dost factor as a means to determine whether there has been an "exhibition," and not, as the Dost court fashioned it, as a way to decide whether a given exhibition of nudity was "lascivious." In other words, the Dost factors applied only once it was already established that there was an exhibition of genitals. The Third Circuit dispensed with that requirement entirely in order to jump to its desired conclusion. Judge Cowan would have done well to pay heed to the Ninth Circuit court's distinction in United States v. Arvin, 900 F.2d 1385, 1391 (9th Circuit, 1990):
In formulating an instruction defining "sexually explicit conduct" under Section 2256(E)(2), the Court, of course, must find that the pictures visually depict the minor's genitals or pubic area. This is the threshold element contained in the [statute], distinct from the additional requirement that the depiction be "lascivious."The meaning of the Ninth Circuit's analysis is clear. By using the Dost factors to determine whether there has been an exhibition of the genitals, the Third Circuit was pulling itself up by its bootstraps.
Judge Cowan well knew what he was doing. In 1989, as the author of the Third Circuit's opinion in United States v. Villard, 885 F. 2d 117 (3d Cir. 1989), he held that the child pornography statute "requires more than mere nudity, because the phrase 'exhibition of the genitals or pubic area' ... is qualified by the word 'lascivious.'" In Knox, Judge Cowan re-wrote history by ruling that the statute never required nudity at all.
A Brief Glimpse of Sanity.
When the Knox case first went to the Third Circuit, the issue of whether fully covered genitals could be an "exhibition" within the meaning of 18 U.S.C. Section 2256(2)(E) was not at issue. In fact, the District Court had found Knox guilty by ruling that the "innermost portion of the upper thighs," which was exposed in some of the images on video, constituted part of the genitalia. After Knox's lawyers brought in an expert in anatomy who laid that theory to rest, the government replied, without citing a single case or even making an argument, that no one could "seriously contend" that "lascivious exhibition of the genital area" required nudity.
After the Third Circuit affirmed Knox's conviction on the government's new theory, his lawyers filed for and were granted Supreme Court review. Before the case was briefed by the parties, however, Clinton became President and Drew S. Days 3d became Solicitor General, the official responsible for making the government's arguments before the Supreme Court. Days did something extraordinary: he changed sides.
Days' brief, filed with the Supreme Court on September 17, 1993, frankly admitted that the Third Circuit "erred in holding that simply focusing on the midsection of a clothed body part may constitute an 'exhibition' of the unrevealed body parts beneath the garments." The government also told the Supreme Court that the legislative history of the statute had been clarified "in order more clearly to delineate 'what types of nude portrayals of children were intended to be encompassed within this definition'."
Days went on to propose a middle way which would criminalize depictions in which fully covered genitals or pubic areas were "discernible either through or beneath the clothing so that it can fairly be said that the depiction was an 'exhibition' of the body parts rather than a depiction of the clothed area of the body." Specifically, Days argued, "'exhibition of the genitals' must require that the area be visible, either through sheer or very tight material or with no clothing at all." Furthermore, "lascivious" must mean "a child lasciviously engaging in sexual conduct as distinguished from lasciviousness on the part of the photographer or consumer."
Days' brief sent the right wing into a frenzy. When the case was first accepted for review by the Supreme Court, standing behind the (then) Bush Sr. Justice Department was a "conglomeration of right-wing religious and anti-pornography activists, including a number of former officials of the Reagan and Bush Justice Departments." Now they had been abandoned. Senator Roth (the very same quoted above from 1977 and 1986) lied profusely on the Senate floor, proclaiming that "[m]uch or even most of the Justice Department's child pornography prosecutions would have to be dismissed under this new standard." Before the Justice Department could advise Congress that there were no such cases pending or even contemplated under the Third Circuit's theory, Senator Roth led the charge for the Senate to pass a unanimous, non-binding resolution condeming Days' brief and insisting that the Congress had always intended to criminalize depictions of fully clothed minors. Not long after, the House passed a similar resolution by a vote of 425-3.
The Supreme Court Ducks.
Rather than decide the case, the Supreme Court sent it back to the Third Circuit on November 1, 1993, with instructions that the Third Circuit should reconsider the Knox decision in light of the government's change of position. The government believed Knox would eventually be cleared. As the New York Times reported:
The order that the Court issued today instructed the Third Circuit, which sits in Philadelphia, to reconsider the case in light of the Government's current position. Before the appeals court does that, however, Federal prosecutors are likely to drop the prosecution. Government lawyers who have seen the tapes at issue have said privately that they fall well below the standard for prosecution described in the Government's new definition.(Reproduced in the Congressional Record, S14977, November 4, 1993.)
Following that report, however, President Clinton chastised Days in public and asked Attorney General Janet Reno to take charge of the case. Reno reverted to the government's earlier position, the Third Circuit re-affirmed its decision with still more distortions, and Knox went to jail for five years. Knox's lawyers again asked for Supreme Court review, but the Court denied it without opinion.
What Knox Was Actually Convicted For[Blackwhite] means also the ability to believe that black is white, and more, to know that black is white, and to forget that one has ever believed the contrary.
Seized from Knox's home were three videotapes, each two hours long, which contained up to several dozen sequences from a few to fifteen minutes in length. The sequences were dubs made by Knox from videotapes sold by The Nather Company, together with clips from movies.
But for one sequence, no girl depicted in the videotapes is engaged in conduct which could be characterized as even provocative. Any sexuality in the videotapes is implied, sometimes by the natural or feigned sensuality of the model, sometimes by the model's manner of dress (e.g., the skimpy bathing suits worn by 16 and 17 year old models) or by the videographer "zooming in" on the girls' bare legs and midsections. The "panty flashes" which Knox himself noted on the videotape boxes are nothing more than a model fluffing the hem of her skirt or the videographer moving lower or shifting position in an attempt to catch a glimpse of the model's underwear. In reality, the minors on the tapes are doing nothing (whether at the direction of anyone or of their own accord) which someone standing five feet away would consider "lascivious."
Dirty boy! Why do you always stare at my panties?
I don't. You keep showing them.
Liar! I saw you when I was in the tree! Admit it, you're curious! You've never seen a girl's wee wee, I bet!
Yes, I have
I bet you haven't. Want me to show you?
Yours? Are you kidding?
Come and see! Free of charge! Promise not to tell a soul!
The Third Circuit didn't even note the sequence in either of its two decisions. (Clips of Le Grand Chemin can be found on youtube and an image search in Google, at least as of the date of this posting, will turn up a jpg from the above-mentioned scene.)
End of Part One.
Quotations and material for this article were taken from:
Petition for a Writ of Certiorari, Stephen A. Knox, Petitioner vs. United States, Respondent, In the Supreme Court of the United States, October Term, 1992.
Brief of Petitioner, Stephen A. Knox, Petitioner v. United States, Respondent, In the Supreme Court of the United States, October Term 1993.
Brief of Appellant Stephen A. Knox, On Remand from the United States Supreme Court, United States Court of Appeals for the Third Circuit, United States v. Knox, Docket No. 92-7089.
Stanley, Lawrence, "The Child Porn Storm: How One Curious Legal Case Caused a Capitol Hill Stampede," Washington Post, January 30, 1994
Additional background materials:
Greenhouse, Linda, "U.S. Shifts Stance In Court Appeals: Clinton Team at Justice Dept. Rejects Bush Positions on Rights and Smut Law," New York Times, September 28, 1993, p. A22.
Whelan, Ed, DAG Nominee David Ogden and Knox v. United States, Part 1, National Review Online, February 5, 2009. http://www.nationalreview.com/bench-memos/50475/dag-nominee-david-ogden-and-i-knox-v-united-states-i-mdash-part-1/ed-whelan
"Pornography Law applies even if child model is clothed, court rules," Wall Street Journal, October 20, 1992, p. B5.
Jaffe, Herb, "Appeals court ruling tightens kid porn law," Star-Ledger, Nov. 13, 1992, p. 12.
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