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Look but don't touch?

Eugene Volokh's been blogging about child pornography lately (see here and here) and then follows up by responding to a reader's question:

Someone asked: Are pictures of naked children per se child pornography? As I understand it, most laws define child porn as pictures of minors engaging in sexual practices or lewdly exhibiting their genitals; that is the basis on which the child porn statutes were upheld against a First Amendment challenge. A picture of a nude child where the genitals aren't lewdly exhibited -- which probably refers to how they're likely to be seen by the typical observer, and not to the intentions of the minor -- presumably wouldn't be child pornography.
In fact, Eugene is exactly right, at least in one state, as this story about the cinematic classic Girls Gone Wild explains :
A video producer under fire for selling tapes of body-exposing behavior during spring break bacchanals won an important legal point when a Florida trial court ruled that showing breasts of girls did not meet the state's definition of sexual conduct.

Florida law bars the promotion or possession of photos or videotapes that depict sexual conduct by a child under the age of 18.


The defense countered that the images of a bare-chested minor did not constitute sexual conduct within the meaning of Florida law. According to the court ruling, state law says:

"Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation or sadomachistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party. ."

"The videotape image of the minor does not reflect any actual physical contact with her clothed or unclothed breasts," wrote Judge Michael C. Overstreet of the Circuit Court of the 14th Judicial Circuit in Bay County, Fla.

And no, I wasn't checking to see whether my collection's legal (I don't even live in Florida); it just happened to be posted to a mailing list I'm on. So just hide the tapes from your girlfriend; don't worry about the police. At least in Florida. At least until the legislature meets again.


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