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Hernando Today

Lawmakers Crack Down On 'Modeling' Sites

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By TONY MARRERO

Published: February 21, 2008

Two area lawmakers say they recognize

material that exploits children when they see it.

So Sen. Mike Fasano, R-New Port Richey, and Rep. Rob.

Schenck, R-Spring Hill, are pushing legislation to help

prosecutors go after operators of Web sites that, under

the guise of legitimate modeling businesses, post

photos of scantily-clad minors striking suggestive

poses.

The operations, Fasano and Schenck contend, are merely

a way for "perverts" and "pedophiles" to get children

to pose for photographs that are then posted on the

Internet, where users pay a subscription fee to view

them.

"These are children being exploited," Fasano said

Thursday. "It's disgusting."

"This bill is very, very important to me, not only

because in my opinion this material has no place in our

society but, as a parent, this is sickening to me,"

Schenck said.

The two added they worry that the photos could make

targets out of children for sexual predators.

Senate Bill 1128 and its companion, House Bill 1128,

would expand the definition of what the law considers

to be "harmful to minors."

The definition already holds that such material, when

depicting "nudity, sexual conduct or sexual

excitement," appeals to the "prurient interests" and

has no redeeming artistic value.

The bill would add to the definition of "erotic nudity"

and what is unsuitable conduct for a person under the

age of 18 to include the display of breasts, genitals

or pubic area "for the purpose of real or simulated

overt gratification or stimulation of a minor."

Fasano and Schenck acknowledge they're walking a

constitutional tightrope fraught with First Amendment

concerns.

Fasano proposed a similar bill last year that gained

little support. Lawmakers worried that the material is

technically considered protected speech because, though

the minors are shown wearing as little as lingerie and

G-strings, they do not expose their genitalia or engage

in sex acts.

That's why Fasano is trying to expand the definition of

what's harmful to people younger than 18.

"Sadly, it's a thin line between producing child

pornography and producing images on child modeling Web

sites," Fasano said.

The bill will still face such challenges, according to

Luke Lirot, a Clearwater attorney specializing in First

Amendment law.

The bill is far too vague and leaves too much

discretion to law enforcement to decide what material

is obscene and harmful to a minor, which is a problem

from a constitutional standpoint, Lirot said in an

e-mail Thursday to Hernando Today.

It's virtually impossible, Lirot said, to come up with

a specific definition to address the content on the

modeling sites that wouldn't also include all manner of

material already protected by the Constitution.

"The attempt to stretch the prohibitions sought through

this bill to images that are not arguably 'obscene'

would be a violation of presumptively First

Amendment-protected imagery, impose a chilling effect

on the creation of 'erotic nudity' that wouldn't

violate obscenity laws, and be totally impossible to

implement," Lirot said.

The reasons, he said, are twofold: "Any person trying

to comply with these restrictions would have to 'guess'

as to the contours of the restrictions imposed,

resulting in the likelihood of inappropriate

'self-censorship,' and … law enforcement would never be

able to consistently apply such a nebulous and

subjective standard."

Schenck and Fasano said they believe they have crafted

a bill that will pass constitutional muster. The bill,

or at least its intent, also has the support of

Attorney General Bill McCollum, who stood with the two

lawmakers during a Tallahassee press conference

announcing the legislation on Monday.

"This bill is just too important to get it passed and

then have there be questions about constitutionality,"

Schenck said, adding that he would be "shocked" if

lawmakers voted against the measure.

That may be, Lirot said, but it would be "a knee-jerk

reaction to controversy."

"There is no doubt that the political correctness of

this legislation will probably result in the passage of

something similar to this," Lirot said, "but I just

don't think it's going to be enforceable against Web

sites that show prepubescent human beings engaged in

activity that isn't specified sexual activity."

Fasano said he has a back-up plan to craft legislation

that would require operators of such modeling Web sites

to register with the state's Department of Professional

and Business Regulation.

That would require a level of transparency that could

prompt Web site operators to shut down or move

elsewhere, Fasano said.

"We'll pass legislation that will regulate them out of

Florida," he said.

Reporter Tony Marrero can be reached at 352-544-5286 or

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