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Freedom of Speech Case Features Films by 15-Year-Old Porn Star

October 5, 1994

WASHINGTON (AP) _ In a case involving the movies of former porn queen Traci Lords, the Clinton administration urged the Supreme Court today to reinstate a federal law against distributing child pornography.

The law meets the Constitution’s free-speech standards by requiring prosecutors to prove a defendant knew the pornographic material involved a sexual depiction of a child, Solicitor General Drew S. Days III told the court.

But the lawyer for Rubin Gottesman, a Los Angeles porn shop owner convicted of selling pornographic movies Lords made at age 15, argued that the law did not require proof Gottesman knew Lords was underage.

″At the very least a person ought to know that he’s committing a crime,″ said Gottesman’s attorney, Stanley Fleishman. Fleishman urged the justices to uphold a lower court ruling that said the law was unconstitutional and threw out Gottesman’s conviction.

″This is a peculiar statute,″ mused Justice Sandra Day O’Connor. The Supreme Court clerk might violate the law if he received a copy of a Traci Lords movie as part of the case record, O’Connor said, and the justices might violate the law if they watched it.

Justice Antonin Scalia appeared sympathetic to Fleishman’s argument that Congress did a sloppy job of writing the child pornography law.

″We have always said we will not distort a statute from its meaning in order to uphold its constitutionality,″ Scalia said.

But Days said that although the law could be considered unclear, it did not specifically exclude the knowledge requirement. He said such a requirement usually is presumed to be part of a criminal law even if it is not spelled out.

Justice David H. Souter noted that the law ″would be a waste of ink″ if Congress meant to exclude its main point - the knowing distribution of child pornography.

The justices are expected to rule by July.

Gottesman, owner of X-Citement Video, was convicted of selling more than 100 Traci Lords videotapes to an undercover Los Angeles policeman in 1986 and 1987. Gottesman was sentenced to a year in prison and his company was fined $100,000.

Lords already was a well-known porn star when it was discovered in 1986 that she had made many of her sex films when she was only 15.

That revelation led many video distributors to pull her movies from their shelves for fear of child-pornography prosecutions. The Adult Film and Video Association estimated the damage to its industry in the millions of dollars.

In 1982, the Supreme Court created a new exception to free-speech rights when it ruled the government can ban the sale and distribution of child pornography even if it is not legally obscene.

But the 9th U.S. Circuit Court of Appeals overturned Gottesman’s conviction in 1992. The appeals court said the federal ban on distributing child pornography violates the Constitution because it doesn’t require proof that a defendant knew that at least one of the performers was underage.

The law at issue makes it a crime for anyone to ″knowingly″ transport or ship child pornography. The appeals court said the word ″knowingly″ refers only to transporting or shipping but does not require knowledge that the material shows minors engaging in sexual activity.

Justice Department lawyers said in court papers that the 9th Circuit court’s ruling did not reflect Congress’ intent when it passed the child pornography law. The court should have interpreted the law in a way that would have made it constitutional, government lawyers said.

The case is U.S. vs. X-Citement Video, 93-723.

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