ATLANTA — The girl in the photograph is the archetypal kid sister. No more than 12, her body is a boy's, but her face is pure woman. The contrast is so intense that you almost don't notice: She's wearing a defiant gaze and nothing else.
The photograph is alluring, arresting, fine art in the eyes of many. But in Alabama and South Carolina and Colorado and elsewhere, it's the ultimate indecency. No matter how many museums hang it on their walls, the photograph is seen in parts of America as "child pornography."
And one day soon the courts may see it that way too.
From Darwin to Mapplethorpe, from Elvis to 2 Live Crew, the frontiers of free speech are forever being explored and forever being fought over. So, two weeks ago, it seemed like just another day in the life of the 1st Amendment when an Alabama grand jury indicted Barnes & Noble bookseller for peddling "obscenity," namely two coffee-table books from two reputable publishers.
But this is not your father's 1st Amendment fight. This bitter debate about acclaimed photographers David Hamilton and Jock Sturges centers on both the intent and the content of their work, on their "backgrounds" as well as their foregrounds, on Hamilton's unorthodox beliefs about young girls as much as Sturges' disturbing behavior toward one.
Specifically, the Alabama grand jury cited "The Age of Innocence," by Hamilton, and "Radiant Identities," by Sturges, two books of large-format, high-quality photographs thought by thousands of critics and consumers to be socially acceptable, even wonderful.
But both books focus almost exclusively on naked girls, poised on the precipice of puberty. Sometimes the girls are featured suggestively, other times erotically. In a typical Sturges photograph, a girl about 10 years old lies back on a futon, her arms outstretched, her exposed genitals drawing the viewer's eye to the center of the frame. In a typical Hamilton photograph, a girl of 13 gazes at her new breasts, touching them tentatively.
Even before Alabama slapped Barnes & Noble with a 32-count felony indictment punishable by a $320,000 fine, Tennessee charged the nation's largest bookseller with misdemeanor violations of a state obscenity law, citing the same books, plus one by Sturges.
In Kansas, Virginia, Missouri, Florida, Nebraska, Pennsylvania and at least 20 other states, groups are pressuring local officials to do the same, urging police and prosecutors to review photographs by Hamilton and Sturges and declare them child pornography.
As such, the photographs would be unprotected by the 1st Amendment, since the U.S. Supreme Court has excluded child pornography from the rights of self-expression. But in its last landmark ruling on child pornography, 16 years ago, the justices left lower courts and lawmakers to grapple with what constitutes sexual depiction of children, along with the still murkier question of mitigating factors, such as artistic merit and redeeming social value.
Profiles, Portfolios Troublesome to Police
Now along comes the work of Hamilton and Sturges, two artists whose works sexualize children, two men whose profiles trouble law enforcement officers as much as their portfolios.
"This presents a case squarely in the middle, in which artistic merit is claimed to come precisely from the eroticism of children," according to Jack Balkin, Knight professor of constitutional law and the 1st Amendment at Yale Law School.
In other words, one day there may be heated courtroom arguments not only over whether a work of art is obscene per se but also whether the artist is.
"It raises the question of whether you want to characterize these folks as sleazy panderers or serious artists," Balkin says. "That's really what's at stake."
Also at stake is Sturges' freedom. For the second time in eight years, he's the target of a U.S. Justice Department investigation. Department spokesman John Russell won't comment, except to say "we're reviewing the work" to see if it constitutes child pornography.
But the last time Sturges was investigated by the federal government, in 1990, police and federal agents stormed his San Francisco studio, where they claimed to find photographs of nude children (genitals "vividly displayed," according to one newspaper account that quoted FBI agents) along with letters and photographs that suggested Sturges had engaged in a sexual relationship with a 14-year-old girl. It's a relationship Sturges doesn't deny.
Inspector's Opinion Remains the Same
"I wondered when this would come up again," says Thomas L. Eisenmann, an inspector for 18 years with the child-exploitation unit of the San Francisco Police Department.
It was Eisenmann who led that raid on Sturges' apartment eight years ago, Eisenmann who stuck his foot in the door when Sturges tried to slam it shut. And it was Eisenmann, an amateur shutterbug, who kept copies of many Sturges photographs, which he now uses to train police officers about pedophiles.
"I thought it was child pornography," Eisenmann says. "And I still do."