The Tin Drum Meets the Tin Badge

How a classic 1979 film suddenly turned into child porn

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."

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.

Contributing Editor Charles Oliver ([e-mail]) writes for Investor's Business Daily.