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That label has stalked more than a few artists in the years since the Supreme Court's landmark ruling on child pornography. In one prominent case, FBI agents in 1990 raided the San Francisco studio of internationally acclaimed photographer Jock Sturges, seizing equipment, negatives, and photographs he had taken of nudist families. Sturges was never indicted, but he ran up a hefty legal bill during the fifteen-month investigation. Grand juries in Alabama and Tennessee did, however, indict Barnes & Noble on child pornography and obscene materials counts for selling Sturges's book Radiant Identities. The chain reached a deal with Tennessee authorities to display the book in blinder racks above children's eye level. The Alabama case was dismissed on a technicality.
In another oft-cited case, Detroit police raided the house of Marilyn Zimmerman, a photography professor at Wayne State University. They had been tipped off by a janitor claiming that a contact sheet containing images of Zimmerman's three-year-old daughter in the bathtub "looked like porn" to him. The prosecutor's investigation ended after a nationwide response from colleagues, curators, and scholars attested to Zimmerman's significance as an American artist and educator, and to the historical context for works of art that have shown nudes, including children.
Perhaps the most famous recent case involved Pete Townshend, guitarist for British supergroup The Who. Townshend's arrest in January 2003 came after he admitted downloading child porn while researching a memoir about his own abuse as a juvenile. He was cleared four months later, following a lengthy police investigation by Scotland Yard, although his name remained on a national sex offender register. A year ago on his Website, www.petetownshend-whohe.blogspot.com, Townshend wrote, "On the issue of child abuse, the climate in the press, the police, and in government in the UK at the moment is one of a witch hunt."
In the United States, child pornography is defined under federal law as the visual depiction of minors "engaged in a sex act" or the "lascivious depictions of [a minor's] genitals." In the past few years, thousands of Americans have been tried in child pornography cases. The level and intensity of the prosecutions reflects society's "growing anxiety" about child abuse and more frequent news stories about sexual predators, according to Marjorie Heins, founder and director of the Free Expression Policy Project at New York University's Brennan Center for Justice. "It becomes very hard to have a coherent conversation about it without temperatures rising."
In Miami, U.S. Attorney Alex Acosta has made clear his intention to prioritize the prosecution of pornographers. Meeting with FBI supervisors in 2005, the then-interim U.S. Attorney surprised some by placing smut of all kinds toward the top of his enforcement list.
Soon after Bobb's arrest, his lawyers began pondering a defense based on freedom of expression. They felt it might apply in this case because of his long, law-abiding history in the community and his boundary-testing experimentation. They repeatedly mentioned his artistic work during plea negotiations. "Edward Bobb is not the person this law was created for," Horstman says. "His purpose was not to harm anybody, but actually to create more of a social awareness about the issue."
Unimpressed, government prosecutors filed a motion in January to prohibit the defense. "Moreover, whether defendant identifies his avant-garde use of child pornography ... simply has no legal significance on his culpability," the motion stated. "[The artist defense] would improperly allow defendant to turn the trial into a symposium on the First Amendment."
Judge Ursula Ungaro-Benages agreed, forcing Horstman and Schwartz to argue instead that evidence did not show beyond a shadow of a doubt that Bobb had actually downloaded the images. Maybe his son, Xeno, had done it, they suggested to the jury.
The trial, which began February 12, lasted four days. Assistant U.S. Attorney Norman Hemming insisted on showing the jury some of the most disturbing images recovered from Bobb's computers. The prosecution also called a half-dozen witnesses, including the FBI agents who searched Bobb's computers and arrested him. There was also an official from the Oklahoma children's group that unwittingly hosted child pornography on its Website, as well as someone from Bobb's Internet service provider.
Schwartz and Horstman called no witnesses. "Who would we call?" Horstman says. "Unless there's someone who's going to say, Yeah, it's my child pornography,' which is unlikely." The trial's final day stretched into the evening on Valentine's Day. Horstman sensed a growing impatience as she made her closing argument. "I remember thinking all these women and men are wanting to get home for their Valentine's Day."
The jury took only an hour and a half to reach a verdict. Tomorrow Judge Ungaro-Benages will decide Bobb's sentence. Federal guidelines mandate a minimum of five years in prison.
While most of Bobb's friends and colleagues support him, they've also struggled to understand. Some wonder how well they actually knew the artist.
"The whole thing is extremely uncomfortable," says Charles Recher, who taught film studies with Bobb at MDCC. He speaks deliberately between frequent pauses, saying "you know" in almost every other sentence. "He always worked with images from the culture, transforming images."