THERE WERE clinkers in the drug bill of 1988, among them an assault on the First Amendment disguised as a measure to combat child pornography. These were challenged in court by the American Library Association and struck down, but last month, as the Senate was rushing to complete another big anti-crime bill, Sen. Strom Thurmond (R-S.C.) slipped in an amendment to reinstate most of the provisions of the 1988 law that were invalidated by the court. With the briefest of comments from Sen. Joseph Biden (D-Del.), floor manager of the crime bill, the Thurmond amendment was accepted.
The 1988 law required that elaborate records be kept on all persons -- no matter what their age -- appearing in pictures containing nudity or "sexually explicit conduct." But such material, unless it is obscene, is protected by the First Amendment except if the subject of the picture is under 18. So on the pretext of seeking out material depicting children, the law requires producers of all books, magazines, films and videotapes to maintain records of the names, birth dates, stage names, aliases and nicknames of all persons of whatever age appearing in pictures that may be subject to the act. The law is retroactive, requiring records for material produced since 1978, and it applies to material produced anywhere in the world. The law also creates a presumption that if records have not been kept, the subjects in the images are minors.
U.S. District Judge George Revercomb had ruled that the law is not narrowly tailored to the problem of child pornography and that it is an unconstitutional restriction on other material clearly protected by the First Amendment. He also struck down some of the horrendous forfeiture provisions of the act, which would have allowed the confiscation before trial of a publisher's entire inventory and buiness assets.
Now comes Sen. Thurmond to "cure" the law of its unconstitutionality. Changing only the language on criminal presumption, he offers an amendment that would retain all the other suspect provisions. Even the Justice Department has conceded in an appellate brief that some of these provisions cannot be defended. Yet the Senate goes along with this charade as if something important were being done to protect children. There are already 32 laws on the books dealing with obscenity and child pornography. A new law is not needed; this one is a devious amendment to curb protected speech,and it should be rejected by the House.