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Hernando Today

Cracking Down On 'Modeling' Sites

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By TONY MARRERO, Hernando Today

Published: February 22, 2008

BROOKSVILLE - 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 lmarrero@hernandotoday.com.

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