It’s hard to quarrel with the federal government’s goal of stamping out child pornography, the creation of which often involves unspeakable crimes against small children. But some of the government’s tactics make you wonder.
Take the case of Keith Jacobson, a 57-year-old farmer who spent 20 years in the military, served in Korea and Vietnam, won the Bronze Star, then returned to his native Newman Grove, Neb., to support his aging parents. He spent 10 years there as a school-bus driver.
His record was unblemished except for a 1958 drunk-driving conviction. His weakness was an interest-perhaps latent, perhaps active-in pictures of nude boys.
In 1984. Jacobson purchased by mail two nudist magazines entitled Bare Boys I and Bare Boys II. The magazines depicted no sex acts and therefore were not illegal under the federal child pornography law. But federal agents who later busted the distributor on obscenity charges found Jacob-son’s name on the distributor’s mailing list.
Suspecting that Jacobson might hunger for hard-core kid-porn, the agents targeted him-though he had done nothing illegal-in five undercover sting operations over the next 29 months. Postal inspectors posing as the "American Hedonist Society and as individual porn buffs mailed him two membership applications with sexual-attitude surveys, seven letters, and two sex catalogs. The charade was part of a sting called "Project Looking Glass," run by the U.S. Postal Inspection Service.
Jacobson’s responses showed an interest in adolescent sexuality. But he took the bait only after he had been contacted 11 times. In 1987, he ordered a magazine, which was advertised as depicting "oral, anal sex and heavy masturbation" involving boys as young as 11, from the government-front "Far Eastern Trading Co., Ltd." of Hong Kong.
Postal inspectors sent Jacobson the magazine, followed it to his home, seized it, and arrested him. A search turned up no other illegal materials. Jacobson was convicted of receiving through the mails pictures of minors engaged in sexually explicit conduct-a federal felony.
In October, the U.S. Court of Appeals for the 8th Circuit upheld the conviction by 8 to 2. The majority said the government’s tactics did not apply "extraordinary pressure" or "shock the conscience of the court.”
The dissenters accused government agents of luring into crime and branding as a pedophile a law-abiding citizen who, but for the agents’ persistence, might never have touched illegal child pornography.
In another Project Looking Glass case, James Mitchell was one of many thousands of people who received an unsolicited invitation to join "Love Land."
The four-page letter said, "We believe that we have the right to read what we desire, the right to discuss similar interests with those who share our philosophy, and … the right to seek pleasure without the restrictions being placed upon us by an outdated puritan morality." It asked applicants their attitudes about activities ranging from music and painting to "water sports" and "animal training," and about materials ranging from pinups to depictions of homosexual acts.
Other questions sought the age when applicants had their first sexual experience and asked whether they believed in sexual freedom for consenting persons of all ages. In capital letters, the letter pledged that responses would be "held in strict confidence."
Love Land was a government front. Its purpose was to test people found on pornographers’ mailing lists so as to ferret out those who might crave kidporn.
The postal inspectors threw a broad net: Such mailing lists include lots of people who have never knowingly ordered child pornography or obscene material. And the bogus letters sent by Love Land and other government fronts seemed "designed to attract the interest of individuals possessing one or more of a broad range of legal sexual and non-sexual interests," according to a 9th Circuit panel that recently reviewed these operations.
Most of the thousands who answered showed no interest in kidporn. But the responses of Mitchell and 1,400 others prompted postal inspectors to send them another letter, from the Far Eastern Trading Co. The letter denounced "censorship" of kidporn and said that the company could deliver "youthful material" from overseas "without prying eyes of United States Customs seizing your mail.”
Mitchell ordered Torrid Tots, which contained pictures of sex acts involving very young girls. Postal inspectors delivered the magazine to Mitchell’s post office box, followed him home, seized the magazine, and arrested him.
The 9th Circuit panel upheld Mitchell’s conviction in October, noting that he had ordered kidporn from a real distributor before the government approached him.
But the three judges evinced distaste for Project Looking Glass: Thousands who (unlike Mitchell) had never displayed any interest in kidporn, wrote Judge Dorothy Nelson, "unknowingly disclosed their sexual attitudes and proclivities to the government and were deceptively led to tell the government such intensely private information as the age when they had their first sexual experience."
It was "particularly offensive," Judge Nelson added, that the government had "cynically invoked the rhetoric of the First Amendment" in laying its trap.
Responses disclosing legal but possibly embarrassing sexual interests are, presumably, still sitting in government files. One hopes they will not be used as J. Edgar Hoover used files of the Federal Bureau of Investigation on people like Martin Luther King Jr.
Mitchell’s lawyer plans to appeal to the Supreme Court. Jacobson’s attorney says he might. Neither has much chance; the Court has given prosecutors a wide berth to fight crime by inducing people to commit crimes.
Congress’ central purpose in outlawing receipt of child pornography was to dry up the market for those who create such material.
This is a worthy goal, as is the goal of locking up those who molest children for whatever reason. But it is far from clear that wide-ranging sting operations to ferret out kidporn consumers make much of a contribution.
Such operations are not necessary to find and prosecute large, domestic, commercial kidporn distributors-who have already been prosecuted and driven out of business. Indeed, according to Barry Lynn of the American Civil Liberties Union, dummy companies set up by the government probably make up the majority of kidporn distributors still in business.
Lynn suggests that trapping individual consumers is an easy way for law-enforcement officials to generate the kinds of arrest and conviction statistics their bosses like to see: "You just find someone who keeps this stuff in his closet, mail him some, and bust him. A-bust is a bust."
But John Brugger, a program manager with the Postal Inspection Service, says sting operations are the best way to uncover the "subterranean" activities of both consumers and creators of such material.
Broad Love Land-type solicitations are necessary because pedophiles are wary of traps, Brugger says, and only those whose responses show interest in kidporn are targeted for follow-up solicitations.
Brugger adds that a "sizable percentage" of kidporn consumers are themselves child molesters who "use this stuff to seduce children." Lynn says expert opinion is to the contrary and that there is no evidence that stinging kidporn consumers cuts down on child molestation.
Better safe than sorry? Perhaps. But while the benefits of unrestrained targeting of suspected kidporn consumers are speculative, the costs can be chillingly concrete: Project Looking Glass and other kidpom stings have ended in the suicides of at least five defendants.
One was 34-year-old Robert Brase, another Nebraska farmer. Busted for receiving a kidporn videotape through the mails, he parked his pickup truck on a country road and shot himself dead. There was no evidence he had ever molested a child. Survivors included his widow and two sons.