Newspaper’s nude child photos draw police review

The Phoenix Police Department is looking into whether it should open a criminal child pornography investigation into photographs shot by a Tempe artist and published last week by a Valley newspaper.

Experts in the department's sex crimes unit have asked for the opinions of city, county and state prosecutors on whether artist Betsy Schneider or the Phoenix New Times newspaper violated any laws by showing artistic, nude photographs of Schneider's children in print and online, Phoenix police spokesman Sgt. Andy Hill said Monday.

The photographs accompanied a story written by New Times editor Amy Silverman about how Schneider's work pushes the envelope of cultural acceptance.

The artist's work includes numerous photographs of Schneider's children in various states of dress. In some, the children are wearing no clothes at all.

Hill said no investigation has been launched, but investigators want to figure out whether one is necessary.

"You're dealing a lot with the definition of art and obscenity standards," Hill said.

In an e-mail, Schneider, who is also a professor at Arizona State University, said she has spent 10 years taking the photographs, which show her children throughout their lives. She is certain the photos will be proved as artistic work.

"I am confident that the work will stand up as serious art addressing the ideas of growing up, change, time, childhood and parenthood," she wrote. "I make art from the most important experiences in my life, and right now that is being a parent."

Silverman could not be reached for comment, and a spokeswoman for the state attorney general's office declined to comment.

Barnett Lotstein, a spokesman for the Maricopa County Attorney's Office, acknowledged that the office has been contacted by Phoenix police and is looking at the issue closely.

"It concerned me," Lotstein said. "It concerned people in this office that maybe there was some exploitation of children going on."

The county attorney's office has had its share of run-ins with the alternative weekly newspaper.

In October, a special prosecutor from the agency ordered the arrests of the paper's top two executives for publishing information about a secret grand jury investigation.

The grand jury inquiry itself stemmed from the paper's posting of Sheriff Joe Arpaio's home address online, a move the county attorney believed may have broken an obscure state law.

Since then, New Times and the county attorney's office have been facing off in federal court after the paper sued with allegations of wrongful arrest and prosecution.

Lotstein, who called the photographs published last week "very disturbing," emphasized that there was no investigation on his office's end.

However, Lotstein added, "There's not a blank slate on free speech."

James Hays, an assistant city attorney in Phoenix's civil division, is also looking into the case. He said making the argument that the photographs are child pornography would be tough to do. The U.S. Supreme Court has drawn fairly clear lines between art and pornography, he said.

The key is intent, he said. One of the things police and prosecutors would explore is whether the photographs were meant to be sexually stimulating.

If the photographs were meant to be art, Hays said, courts have generally protected such work as free speech.

In this case, given that Schneider is a trained, renowned artist and the mother of the subjects, the photographs will likely be protected under the law, he said.

"I just don't think it's going to be easy to make a case that these were taken with the intent to be sexually stimulating," said Hays.

If a police or prosecuting agency decides, however, that the work amounts to pornography, the decision would likely reach further than just the newspaper and photographer, he said.

"Everybody who picked up one of those issues," Hays said, "could be prosecuted for possessing child pornography."