Keeping California's Kids Away From Porn

Five years ago, parents in this pristine, mountainside community got tired of the pornographic photos that stared out at passing children from sidewalk news racks and vending boxes.

So they began legal action to conceal pictures of nude and scantily clad women and men on magazine covers. They also went after publications that allowed such photos on inside pages, accompanying ads for sex-chat phone lines, escort services, and personal ads.

Now, after five years of legal jostling that ended with a March 17 US Supreme Court ruling, the town can start covering up those offending publications. The court let stand a broad and controversial California law that makes it a crime to distribute in a news rack material that is "harmful to minors."

But more legal battles may lie ahead. La Caada is just one of many California communities trying to figure out how to implement the law - each city and town is drafting its own details of the definition of "harmful matter." So the legal meaning of that electrocharged phrase will likely be the subject of many court cases, observers say.

"There is real confusion and potentially considerable litigation ahead over what is and is not covered by this law," says Barry Fisher, attorney for Fleishman, Fisher, and Moest, the firm that represents six "adult" newspapers whose free-speech appeal on the law was turned away by the high court.

The legal debate over what constitutes offensive material has broad national implications. Two Tennessee legislators last month, for instance, introduced a bill that would require opaque covers on Sports Illustrated's Swimsuit Edition. Violators would face up to 30 days in jail and a $50 fine.

The Supreme Court ruling that allowed California's law to go into effect could also have a bearing on the high court's own interpretation - and the subsequent implementation - of the federal Communications Decency Act (CDA), which is currently before the court.

The CDA - which makes it a crime to transmit material on the Internet containing "obscenity" to persons under 18 - was passed in 1996. But a Pennsylvania federal court declared it unconstitutional. The Supreme Court is expected to rule on the law in May.

"Allowing the California law to take effect is a clue to how the Supreme Court thinks about regulation of matter harmful to minors," says Laurent Lessig, law professor at Harvard University in Cambridge, Mass. The ruling seems to indicate that the wording of the CDA, which applies a stricter standard than "harmful," will be struck down, he says.

"But perhaps this is evidence that a more narrowly restrictive CDA could work," he adds.

Indeed, because California's "harmful" wording could become the standard for the nation, it bears close attention.

According to the law, "Harmful matter means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest." It is matter that "depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."

In La Caada, many residents say they intend to implement a strict interpretation of the definition.

"We feel this is one of those issues where people have to make a stand for what is appropriate and what isn't," says Vicki Ho, mother of four and president of La Caada's Junior Women's Club.

Gabriella Pryor, city manager for La Caada-Flintridge, agrees: "We will be urging the city council to take the strongest, most restrictive possible stance."

For now, they are eyeing publications that regularly show men and women nude on the cover, as well as those that print personal ads describing sexual preferences. "We feel the law is very clear," Ms. Pryor says.

OTHER observers say that defining such publications as harmful could be problematic. "We are talking about an area protected by the US Constitution that is quite gray," says Mr. Fisher.

Besides swimsuit and lingerie magazines, there are several established news-format weeklies that are primarily editorial in content but that include personal ads in the back.

The alternative to requiring that such material be removed from public places is for the publications to voluntarily change their content.

One such tabloid, L.A. Express, told readers on the cover of its March 20 edition that "we intend, of course, to comply with the law. With this in mind, we have censored pictures and text so that the material as a whole is within contemporary statewide standards."