In 1979, Volker Schlondorf's The Tin Drum was co-winner of the Cannes Film Festival's Palme d'Or for best picture. The next year it picked up the Academy Award for Best Foreign Film. It has since attained classic status around the world, except in Oklahoma City. For now, anyone there who so much as possesses a videotape of the film--never mind watching it--risks spending 20 years in jail. A district court judge there last June declared the film to be child pornography.
His decision--made without a formal hearing--generated international headlines, as did the actions of Oklahoma City police: They took copies of the movie from video stores and even from private homes in the absence of filed charges and without search warrants. Whether they or the judge acted properly--and whether Oklahoma's statutory definition of child pornography is constitutional--will likely be answered in court.
But the case has implications beyond Oklahoma, which has a broader definition of child pornography than most other states. Over the past decade, the federal government has broadened its own obscenity laws, and while the Supreme Court has said these statutes are thus far acceptable under the First Amendment, this case may force the Court to consider whether such laws can run afoul of free speech protections.
The film, which had not previously been considered controversial, first began to run into trouble on a local Christian radio station when a talk show host told the story of an unhappy student required to view the film for a college class. Listening with interest was Bob Anderson, director of Oklahomans for Children and Families. Founded in 1984 as Oklahomans Against Pornography, OCAF has forced numerous adult-oriented businesses in Oklahoma to close and has succeeded in removing The Playboy Channel from local cable systems.
"The host said that he thought the film could be judged as child pornography," says Anderson. So Anderson's group checked out a copy of the film from the local library to judge for themselves.
Going to the library wasn't just a way to save on a video rental charge: OCAF has been at odds with the Municipal Library System Commission in Oklahoma City for some time. The group objects to the library system's policy of making anything on the shelves available to anyone regardless of age. Members cite numerous works they want removed or restricted to adults, including a series of adolescent novels by Robert Cormier.
"We have a procedure for people who wish to contest library policy to go through," says library spokesperson Julia Frefonke. "There are forms immediately available in the library for people to fill out." According to Frefonke, "OCAF has never followed that procedure." Instead, the group has preferred to complain directly to the volunteer commission that runs the library system.
In the case of The Tin Drum, however, OCAF took a different tack: It went directly to the police and asked that library officials be arrested for circulating child pornography. The police then took the film to Oklahoma County District Court Judge Richard Freeman.
Under Oklahoma law, the police do not need a judge's opinion to make an arrest if they believe they have a case of child pornography. "We felt that potentially it was both obscene and child pornography," says Capt. Ted Carlton of the Oklahoma City Police Department. "But we recognized that this was an award-winning film, so we took it to a judge to get his opinion." Judge Freeman found that the film was indeed child pornography under Oklahoma law.
That law declares child porn to be any actual, simulated, or described sexual act in which one of the participants or a depicted observer is under the age of 18, or appears to be prepubescent. As that definition makes clear, you don't need actual children to have child pornography in Oklahoma. Indeed, police there have gone after printed descriptions of child sex.
And in 1995, Oklahoma City police raided a shop called Planet Comics on a tip from OCAF, charging the owners with child pornography. The charges were based on cartoon drawings of sexual acts involving a "newborn demon" that bore slight, if any, resemblance to a human baby. Those charges were later dropped, but the owners still face misdemeanor charges of displaying material harmful to minors.
Based on an acclaimed and stylistically complex 1959 work by German novelist Günter Grass, the R-rated Tin Drum is an indictment of Nazism through the eyes of a seemingly young boy, Oskar. Protesting the adult madness around him, Oskar has "refused" to grow up. The role was played by actor David Bennent, then 12 years old.
Two scenes, of no more than 30 seconds each, caught Freeman's eye. In the first, Oskar and his young nanny are in a bathhouse changing room. Both are apparently nude, though viewers never see either's genitals. Oskar asks the girl how old she is, and she answers that she is 16. He too is 16, he says, and circles his arms around her waist. The scene then ends. This sequence has been described in the press repeatedly as one in which Oskar performs oral sex.
The second scene begins with Oskar and the girl in bed, dressed in night clothes. That scene ends as they start to play around, but it was apparently interpreted by the judge as a scene of sexual intercourse. That was enough to qualify the 142-minute film as child pornography. "The law doesn't make any exceptions based on literary or scientific value," observes OCAF's Anderson.
"You don't even have to have nudity," adds Bill Comstock, an attorney representing the library system. "If you have, say, two people rolling around under the sheets, that could qualify as sexual activity under the law if at least one of them is underage."