Photographic Art Or Child Porn? Controversy Roars -- Reputable Bookseller Caught In Crossfire

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 to many people, 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 it seemed like just another day in the life of the First Amendment when an Alabama grand jury recently indicted Barnes & Noble on charges of peddling "obscenity," namely two coffee-table books from two reputable publishers.

This bitter debate about acclaimed photographers David Hamilton and Jock Sturges centers on 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 filled with 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 more by Sturges.

In Kansas, Virginia, Missouri, Florida, Nebraska, Pennsylvania and at least 20 other states, groups are pressuring local officials to take action, 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 First Amendment, because 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.

Now along comes the work of Hamilton and Sturges, two artists whose work sexualizes children, two men whose profiles trouble law-enforcement officers as much as their portfolios do.

`Squarely in the middle'

"This presents a case squarely in the middle, in which artistic merit is claimed to come precisely from the eroticism of children," said Jack Balkin, Knight Professor of Constitutional Law and the First 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."

In 1990, police and federal agents stormed Sturges' 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.

After Sturges' life work was carted off and tagged as evidence, after his name was dragged through the mud, the grand jury in San Francisco decided not to indict. Why remains unknown, because the files are sealed and no one at the Justice Department will discuss the case.

If the furor seemed to cool after Sturges was cleared, in reality it was only simmering. Recently it started to bubble up again, in Wichita, Kan., and Palm City, Fla., and Glendale, Colo., all over the map, as conservative groups continued to trade outraged notes and news about Hamilton and Sturges, and occasionally filed complaints with local officials, most of whom did nothing.

Then, last summer, Randall Terry got involved. The founder of the militant anti-abortion group Operation Rescue heard about Hamilton and Sturges and went straight to his local Barnes & Noble.

"I honestly wasn't believing that Barnes & Noble was selling child pornography," Terry says. "My wife and I have been shopping there for years. It's a great bookstore."

But after reviewing the books, Terry and his wife decided there was no doubt Hamilton and Sturges were child pornographers. In August 1997, the Terrys gathered a group of supporters and returned to the bookstore, tearing up the one Sturges book they could find. Police were called, Terry says, but no one was arrested, he claims, because the officers were more offended by the book than by the protesters.

That was the start of a firestorm. Fueled by Terry's nationally syndicated radio show, people in dozens of cities began forming picket lines outside their local bookstores, sometimes raiding the shelves. Some who thought they'd never agree with Terry about anything were examining the books and finding themselves on his side.

Head of Media Watch

"I would say definitely the photographs are child pornography," says Ann Simonton, a former swimsuit model for Sports Illustrated and now the head of Media Watch, a group that monitors cultural exploitation of women.

In Wichita, a group called Kansas Family Research Institute led a petition drive to force the formation of a grand jury. David Payne, the group's leader, says the issue is less complicated than it seems.

"There's no such thing as constitutional protection for child abuse," he says. "Regardless of the artistic merits of the work, such as technical quality and the composition of the photographs, the fact is, these are photographs of children, minors, depicted in nude and provocative poses."

Despite the mounting pressure, Barnes & Noble vows to continue stocking Hamilton and Sturges. On the other hand, many of the company's 483 stores reportedly keep the books hidden or locked away, or only stock them at a customer's request.

Sturges, 50, insists he has the consent and support of all his models and their parents. He says he meets them at nudist beaches and nudist colonies, then moves among them as a member of their extended family.

"The intent of these photographs is to be beautiful," he says. "I find Homo sapiens to be an extraordinarily beautiful species."

But in one case, Sturges' family relationship with his young models went a step further. When he was 28 he conducted a sexual relationship with a 14-year-old named Jennifer Montgomery.

At the time, she was a New England boarding-school student; he was her dorm counselor. They became intimate when he began using her as a model and remained so for years.

Today, Montgomery is 36 years old, a filmmaker living in Brooklyn. She says the episode with Sturges left her "damaged," but that she dealt with that damage by making a quasi-documentary in 1995 called "Art for Teachers of Children," in which she depicts Sturges as equal parts stupid, sleazy and insincere, a man who used photography to get a young, chubby, confused girl to undress.

Still, Montgomery doesn't think he should be prosecuted, because their relationship was "consensual." And she has only high praise for the quality of his prints.

"It's confusing," she concedes. "But that's life. It's not black and white."

"I'm not a philanderer," Sturges says. "I've had four relationships in my life. That's it. Period. She was the second. . . . That's obviously embarrassing now, but in light of my regard for her intelligence and the stature of her intellect - I'm human."

Unlike Sturges, who is far less commercially popular but more critically praised, Hamilton, 65, says candidly that sex is a big part of what he does with the camera.

Little girls are "erotic," he says, plain and simple. His photographs - most of which are hazy and colorful, a sharp contrast to Sturges' stark black-and-white images - seek to elicit that eroticism.