The Tin Drum Meets the Tin Badge

How a classic 1979 film suddenly turned into child porn

Charles Oliver from the October 1997 issue

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Once the judge ruled that the film was child porn, Oklahoma City police moved quickly to gather all copies of the film in their jurisdiction. They visited six video stores and left with cassettes, but whether the police "seized" the tapes or were given them has become an Orwellian matter of contention. "We take exception to the term seizure," says Capt. Carlton. "We solicited the voluntary cooperation of people in trying to abate future legal problems."

What police told people was that the film had been ruled child pornography, and possession of child pornography is a felony. Police also persuaded video stores to turn over the names of two persons who had rented the film, and went to their homes to "solicit the voluntary cooperation" of those persons as well.

Since the police didn't have a warrant, this was a violation of the Video Privacy Act of 1988. Who violated the law is also the subject of finger pointing. "It's our understanding of that law that any violation would have occurred on the part of the video store, not on the police," says Carlton. The entire process from OCAF's complaint to the confiscation of the tapes took less than 72 hours.

One person whose home the police visited was Michael Camfield, development director of the state American Civil Liberties Union. Aware of the brewing controversy, Camfield had rented the tape at a Blockbuster before the judge's decision. "I asked them for their warrant, and they said they hoped it wouldn't come to that," said Camfield. "I got the impression that resistance on my part was futile."

Camfield and the ACLU have filed suit against the Oklahoma City Police Department, charging that Camfield's rights were violated when police seized the tape from his home. The Video Software Dealers Association has also filed suit against the police department. And Oklahoma County Prosecutor Bob Macy has gone to a second district court judge asking him to reaffirm that the movie is child porn and to enjoin the library system and local video stores from making it available. (Frequent updates about the Oklahoma City case are available at www.kino.com, the Web site of Kino Films, The Tin Drum's American video distributor. Kino is also offering discounts to Oklahoma residents who order copies of the video.)

The most important issues the case will likely settle is whether a work like The Tin Drum is protected under the First Amendment. The Supreme Court has held that obscenity is not protected. In Miller v. California, the Court put forth its well-known three-prong test for obscenity: The average person, applying community standards, would find that the work, taken as a whole, appeals to a prurient interest; the work depicts sexual conduct in a way that would be offensive under community standards; and the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

But in New York v. Ferber, the Supreme Court held that the Miller test doesn't apply to child pornography. The government can outlaw child porn without regard to other issues. "This means that a work doesn't have to be judged as a whole," said Rick Tepker, a First Amendment specialist at the University of Oklahoma College of Law. "One depiction of minors engaging in sex can qualify a larger work as child porn."

Nor does it matter that the work may have a serious intent. "When judging child pornography, the Court has held that you don't have to consider whether a work has literary, artistic, or scientific value. Those issues don't even have to be considered."

But Tepker doesn't think the Supreme Court had in mind works like The Tin Drum when making its rulings, and he expects that, if the case reaches them, the justices will find that the film is indeed protected by the First Amendment.

Judge Freeman's ruling that The Tin Drum is child porn covers only Oklahoma County. District attorneys in at least three other Oklahoma counties viewed the film, but none took action against it. Bill LaFortune, the Tulsa County district attorney, announced that he would not prosecute anyone who sells, possesses, or shows the film. But he did caution those possessing the film "not to show it to minors."

"After viewing the film, we thought that it was indeed possible that it violates Oklahoma law," says LaFortune. "But after reviewing the relevant court decisions, we also thought it possible that the film was constitutionally protected. It's really in sort of a legal gray area."

LaFortune notes that the Supreme Court's cases have involved works featuring actual sexual activity by minors, or the lewd exhibition of the genitals of minors. "And neither of those elements is present in this film."

In Oklahoma City, however, film lovers will still view The Tin Drum at the risk of their liberty. The courts will eventually decide if authorities there have been too zealous in their pursuit of smut, and the city's younger citizens will, like Oskar, have a chance to consider if the adults around them are mad.