N.Y. Man Files Suit to Reclaim Pornographic Pictures of Himself

Jeff Berg
ALBANY, N.Y. — An Albany man is waging a legal battle against U.S. Attorney General John Ashcroft and New York Attorney General Eliot Spitzer, claiming that laws barring him from possessing childhood photos of himself should be ruled unconstitutional.

The problem is that the laws in question pertain to child pornography and the childhood photographs depict Mark Horgarth engaging in solo masturbation and sexual acts with others.

Originally filed in the U.S. District Court for the Northern District of New York at the end of June, the lawsuit contends that the 269 pictures, currently located in a foreign country for fear that they would give the government grounds to bring child pornography charges against Hogarth, should be constitutionally protected under the right to privacy and the First Amendment.

“The 269 photos are of deep personal importance to me,” wrote Hogarth in his pro se complaint. “I have become increasingly indignant that I am obligated to travel to a foreign nation to view these personal photos, and that I may not legally possess them here in the State of New York, my home for most of my life since birth.”

Hogarth contends that the pictures, taken when he was between 11 and 15 years old, hold “artistic merit,” were not illegal at the time and that he “enthusiastically consented” to the activities depicted in the pictures.

“If I could go back in time I would do it all over again with even more good-natured gusto,” wrote Hogarth. “I was not the pawn of anyone, nor were the photographs created for sale nor for any commercial or ‘evil’ purpose.”

The government, though, alleged that since Hogarth was a minor at the time the photographs were taken, they are inherently illegal.

“The mere fact that decades later the plaintiff alleges that all the sexual conduct was consensual does not alter the fact that the plaintiff was incapable of consenting,” wrote the government. “The unlawful exploitation of children is not dependant upon the plaintiff’s whim.”

The government also alleged that one of the major reasons for prohibiting the possession of child pornography is to prevent the pictures from being used to lure other children into same activities.

“Once the photographs are in [Hogarth’s] possession, the State would have no control over the advertent or inadvertent disbursement of the material or the use of the material to lure unsuspecting victims,” it wrote.

Hogarth, though, insists that the photographs will only be kept as memories of his youth and that most people wouldn’t be interested in them anyway.

“It is preposterous to propose that […] antique photos from decades ago could be more alluring to minors or to commercial pornographers than images tailor-made using the latest wonders of technology,” Hogarth wrote in a response. “I wish to import and possess the photos as keepsakes, as purely private memorabilia.”

Both sides declined to comment on the lawsuit.

The lawsuit was dismissed in July for jurisdictional and administrative reasons and then refiled with an amended complaint in August.

A status hearing originally scheduled for Oct. 26 has been postponed indefinitely until dispositive matters are resolved.