WASHINGTON -- A new bill in Congress designed to outlaw child-sex websites would instead ban nearly all commercial photography of minors.
Rep. Mark Foley (R-Florida) announced the proposal would ban websites featuring controversial images of nude preteen children. "These websites are nothing more than a fix for pedophiles," Foley said.
He said there has been a disturbing increase of websites with names like "Sunny Lolitas," that show off prepubescent girls playing with stuffed animals or stretched out pin-up style against hot red backgrounds. His press release says pedophiles pay to see photos and video clips of the children in sexually suggestive poses.
But -- whoops! -- that's not what his bill (PDF) actually covers.
Five legal scholars contacted by Wired News said that Foley's proposal, cosponsored by Rep. Nick Lampson (D-Texas) and touted at a press conference on Monday, is so broadly written that it would imperil perfectly innocent photography and videography of children and teenagers.
In addition to prohibiting commercial photography of anyone under 17 years old, their bill would make it a federal felony for stock photo houses like Corbis or Getty Images to license images of minors from their catalogs -- a billion-dollar industry -- or for news photographers to sell images of minors.
James Mitchell, associate general counsel for Corbis, said the Child Modeling Exploitation Prevention Act, or CMEPA, would "negatively impact the industry" and likely violates the First Amendment's guarantees of freedom of speech.
"The Corbis collection includes commercial and editorial images that could potentially fall within the language of the bill as currently written," Mitchell said. "These images are far from inappropriate, but rather, are lawfully and appropriately licensed by business clients all over the world."
Corbis owns approximately 65 million images, including the Bettman Archive and historic photos of Rosa Parks, the Kennedys, the Beatles and Marilyn Monroe.
Jonathan Zittrain, who teaches at Harvard Law School's Berkman Center, was more blunt, calling CMEPA "constitutionally hopeless."
"I think the bill as written is fatally both vague and overbroad," Zittrain said. Those are two standards that courts apply when judging whether a law runs afoul of the First Amendment.
The text of CMEPA says that anyone who "displays" or "offers" to sell the image of a minor under 17 years old -- "without a purpose of marketing a product or service other than an image of a child" -- would be fined and imprisoned for up to 10 years.
Groups like the National Center for Missing and Exploited Children have argued that current child pornography laws do not go far enough since they do not apply to images of children in poses similar to a model's, as reported by Wired News last year. CMEPA is largely a response to this concern by special interest groups.
Nobody believes that Reps. Foley and Lampson are intentionally trying to wreak havoc on the photojournalism, fine art photography, and stock photography industries. Rather, it appears that CMEPA is simply sloppily written and rife with unintended consequences.
A legal aide to Rep. Foley said in an interview on Tuesday that nobody should be worried about the looming threat of CMEPA.
"I've had folks at the Department of Justice look at this and our legislative counsel look at this and we've vetted this issue out," said the aide, who spoke on condition of anonymity.
The aide dismissed concerns from academics and industry representatives as "really off-the-wall" and said "this would not affect them."
When forwarded Corbis' comments, a spokesman for Foley said: "We have already responded directly to this. There's nothing new here."
Scholars who specialize in free speech law said if Foley meant to outlaw only images of children modeling, he should have written CMEPA differently.
"The language of this bill appears to prohibit all commercial photography of children," said Bob Corn-Revere, a partner in Hogan & Hartson's Washington office who teaches at Catholic University. "I can't distinguish from the language why legitimate modeling would be in any way distinguished from what they call exploitative modeling."
Eric Freedman, who teaches First Amendment law at Hofstra University, said CMEPA would ban prints of the haunting 1972 image of a girl covered by napalm. It was taken by Associated Press photographer Huyn Cong (Nick) Ut, won a Pulitzer Prize and helped to turn U.S. sentiment against the Vietnam war.
David Greene, executive director of the First Amendment Project, said of CMEPA: "I can't imagine it is constitutional or even capable of a limiting constitutional interpretation."
Eugene Volokh, who teaches First Amendment law at UCLA's law school, said he doubts that the Supreme Court would uphold CMEPA as constitutional.
"For instance, would the promoters of Olsen Twins and Menudo have been violating the law if they sold posters of the child stars through a fan club?" Volokh said. "After all, the posters would have been sold for their own sake -- this sort of merchandising is an independently valuable profit center for many such outfits."
The legal aide to Foley said the bill has not been scheduled for a vote, but his boss will listen to concerns: "If comments do come about, which is possible, we'll review them."
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