The ACLU shared the parents’ skepticism—though they’ve had to rely on second-hand descriptions so far. Skumanick won’t show the photos to anybody else, including the parents’ lawyers, for fear of becoming a kiddie-porn “distributor” himself.
In a lawsuit filed Wednesday on behalf of the mothers of the three girls, the civil liberties group argues that photos merely showing minors in their underwear or topless so clearly fall outside the statutory definition of “pornography” that Skumanick could not possibly have any “reasonable expectation of obtaining a conviction.” Rather, the mothers charge that Skumanick is using a frivolous threat of prosecution to bully parents into accepting his childrearing “assistance.” The plaintiffs are asking a federal district court to issue declaratory ruling that the photos are protected speech, not obscenity, and to enjoin Skumanick’s threats as a violation of their parental rights.
Though the core of the ACLU’s argument is simply that the photos don’t fit any reasonable definition of porn, the filing also notes that there’s something perverse about planning to charge girls as accomplices in the creation of kiddie porn for the “crime” of allowing themselves to be photographed. While some similar cases involved students who sent pictures of themselves to boyfriends, it’s not clear in this case whether the girls in the photos ever themselves possessed or distributed the pictures.
Perhaps understandably, the ACLU filing doesn’t broach the harder question of whether it makes any sense to wield laws designed to protect children from exploitative pedophiles against adolescents sharing racy photos with each other. Recent surveys show that some 20 percent of teens have done precisely that, either via the Internet or cell-phone cams.
The courts have traditionally recognized several legal justifications for criminalizing the possession and distribution—as opposed to the creation—of child porn. There’s the state’s interest in protecting the minor depicted from further exposure, of course, and the desire to deprive pedophiles of images that can be shown to future victims in order to weaken their resistance. But at the core of the Supreme Court ruling that upheld child porn laws against a First Amendment challenge, New York v. Ferber, was the assumption that child porn would nearly always be the byproduct of an initial act of exploitation of a child by an adult. Criminalizing possession of the product was meant to undermine the market for its creation.
