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Legal News

: Lawbeat

Laws on photos in soft focus

By Mark Obbie

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The Orange County Register's Scott Reid and Dan Albano did admirable digging to tell this story on gay-porn Web sites that thrive on photographs surreptitiously made of young boys at swim and water-polo competitions. The photos of the boys in swim suits, caught sometimes in suggestive poses, are juxtaposed with explicit sex photos. The reporters zero in on a suspect, and generally do a good public service by bringing news like this to light, as alarming as it must be to the swimmers and their parents. But (there's always a "but"!) they could have been much clearer about what the law does or doesn't say on such matters -- and, importantly, why. The story raises a fundamentally legal set of questions -- what can be done to cure this problem? why or why not? -- so it's disappointing that this is all that's said on that score:

“With free speech and photography, there’s a gray cloud in terms of what is legal, constitutional,” said Assemblyman Jose Solorio, D-Santa Ana, chairman of the Assembly Public Safety Committee. Solorio, after being informed of the Register’s finding, said he will have the committee’s staff investigate the matter. “The courts have generally favored free speech. But (the fact) that these photos are on Web sites, pornographic Web sites, raises valid questions about its legality,” Solorio said. But Assemblyman Cameron Smyth, R-Santa Clarita, and constitutional law experts said the photographers are protected by the First Amendment. “Based on our research, we have found it’s very hard to regulate images on the Internet,” Smyth said....Smyth has authored the Surrogate Stalker Act (AB534), which would make it illegal to use Internet images to inflict harm on children.

The story might have touched on the long history in Congress, the courts, and the states to attempt to define illegal depictions of children in sexual situations, and access to those images and ideas on the Internet. And it might have summarized what courts have said about privacy, photographs taken in public places, and private citizens' ability to sue for embarrassment, stalking, harassment, or any other issue raised by this case. But the story doesn't go there. So it's not unreasonable for readers to lash out at fuzzy constitutional abstractions that allow for such misbehavior. And maybe they're right. But why not go well beyond an obligatory and oblique mention of the First Amendment to educate readers a bit?

Full post as published by Lawbeat on January 25, 2008 (boomark / email).