RECENTLY I completed a federal prison sentence for receiving and possessing a few items identified as child pornography. Federal postal inspectors sent them to me because my name appeared on the mailing list of James Kemmish, an adult porn distributor who was caught at the border with some illegal videos recently filmed in Mexico. I had previously purchased some pornographic films from James Kemmish’s California company, films that stated in print that all actors were age eighteen and older, but the government applied a phony technique called the Tanner Method, designed by a Doctor James Tanner, to convince the jury that these models were actually under eighteen.
During the time I was being indicted, the judge in the separate Kemmish case ultimately sealed the list of his customers’ names. There were several thousand of them, and since Kemmish’s company had been in business for years and had advertised in all the major gay media, it was obvious that his customers were looking for and purchasing adult material, films that were not illegal. I was one of the last victims prosecuted prior to the sealing of the mailing list.
You may be surprised to learn that I could have avoided the indictment. The government gave me several opportunities to step aside and avoid prosecution, but instead I puffed out my chest, mustering all the clinical psychobabble I could assemble, and plunged myself into exposing this supposed crime with the bold intention of making a point, of illustrating that our national policies in this matter are misdirected, counter-productive, and definitely hypocritical.
It is my contention that an image on paper (or any other surface) is a form of speech and thus protected by the First Amendment. In my position as a successful neuro-psychologist, I thought I could stand before a court of law and illustrate some basic distinctions that would protect this freedom from recently enacted laws that severely limit its application. These laws do not adequately distinguish between those who create and distribute child pornography, on the one hand, and those who merely view this material, often without knowing the subjects’ ages, on the other.
Among those viewing such images, the law does not distinguish between someone who has actively sought them out and someone who may have received them unsolicited. This problem is especially prevalent in the cyber age, when images of unknown origin can fly around the Internet and land in someone’s box without an invitation. These are problems that will have to be worked out by the courts in the coming years.
Suffice it to say, my attempt to distinguish and protect the various forms of speech supposedly protected by the First Amendment found me way over my head in shark-infested waters. Government prosecutors came after me with both barrels blazing, and I was convicted and sentenced to prison for the possession of images that I didn’t create or distribute and came to possess involuntarily.
As a matter of civil liberty, the act of looking cannot be legislated in a free society. Laws against looking at certain kinds of objects violate the First Amendment and are ultimately unenforceable. I’m not suggesting those who exploit children or who distribute materials depicting children engaged in sexual acts be immune from prosecution. Rather, I suggest we take a “time out” and think this through carefully. When we prosecute those who have merely looked at materials deemed distasteful by society, we place First Amendment rights in jeopardy for all Americans.
James P. Quinlan PhD is a clinical neuro-psychologist who has written a memoir, Tanner’s Naughty Boy, which is the story of his role in a nation-wide child pornography sting, Operation Special Delivery.
