BENSON, AZ — (CNN) For the past two years, a radio station in a small Arizona city has been playing a public-service announcement that advises users of child pornography on how to escape police detection.
The PSA tells people with child porn to store it on a specific type of computer hardware and “hide it where nobody will ever find it.” It goes on to give more details about how to avoid arrest, ending with: “A public service message from the CAVE 97.7 FM.”
The station, KAVV in Benson, does not have a large coverage area, and the PSA — created by station owner-operator Paul Lotsof — initially aired after midnight. But still, somehow nobody seemed to notice or complain — until now.
“It’s wrong, it should be taken down. It’s sickening,” Benson resident Jeanne Dyer told CNN affiliate KVOA this week.
In recent days the ad has been pulled off the air, the community has been outraged and the episode has raised questions about free speech and Arizona’s strict penalties for possession of child pornography.
“I’ve discussed it with the Sheriff. Based on what is in the PSA, even though it’s incredibly disturbing and personally offensive and professionally offensive to me, the reality is the comments he made are rather firmly protected by the First Amendment,” Cochise County Attorney Brian McIntyre told CNN.
“It’s weird (no one heard it),” he added. “We are a smaller county though, and the time of its airing was between midnight and 2 a.m. and there’s not a lot of people awake in Benson at that time.”
‘I feel sorry for the people caught with it’
KAVV’s Lotsof told CNN he recorded the PSA about two years ago, “mostly to call attention to Arizona’s extreme laws for child pornography and to try and keep people out of life in prison just for possessing pictures.
“It (the PSA) does not advocate possession of child pornography or reproduction of child pornography. And I know the question you’re going to ask — no, I don’t have any of that stuff. I don’t have any use for it.”
Lotsof said he doesn’t have children and doesn’t believe Arizona’s strict child pornography laws help kids.
“I don’t think the law on the books has to do with whether this material is produced or not. There is clearly some market for it and it will be produced. It’s sort of like drugs in Arizona — it’s a felony to possess marijuana, but it’s not like marijuana isn’t going to be grown here,” he said.
“I am not an advocate for it (child pornography). I’m not interested in it and I am against the production of it … but I feel sorry for the people caught with it who are in life in prison as a result. Those people are the real victims and their families,” Lotsof said. “If all of this prevented one person from spending life in prison, then it’s worth it.”
McIntyre, the Cochise County Attorney, had sharp words for Lotsof’s point of view.
“Regardless of the feelings Mr. Lotsof has, the reality is that if there wasn’t a market for this, if people didn’t make the choice to consume it, then we would see an end to it. And when he talks about the real victims, the real victims are the girl who has to spend the rest of her life wondering every time she walks through the grocery store and someone takes a second look at her, ‘Has he seen my pictures?’
“Those are the victims, and so that’s why if you are a consumer — regardless of being a producer of this — in Arizona people like me frankly will seek to put you in prison for the rest of your life.”
Arizona’s strict sentences
Arizona’s law, called Sexual Exploitation of a Minor, is a Class 2 felony and carries a minimum sentence of 10 years in prison. Possession of multiple images of child pornography are considered separate offenses in Arizona, and sentences must be carried out consecutively, rather than concurrently — meaning that someone convicted on 10 counts would be sentenced to at least 100 years.
The law also denies those convicted the possibility of early release, parole or probation.
In 2003 Glendale, Arizona high school teacher Morton Berger was charged with possession of child pornography after investigators found thousands of photos on his computer of children engaged in sexual acts. Berger was convicted and sentenced to 200 years in prison — 10 years on each of 20 counts.
His lawyers called Arizona’s law the toughest in the nation and appealed his sentence, arguing that it amounted to “cruel and unusual punishment” because it exceeded penalties for more violent crimes. By comparison, the federal penalty for possessing or transporting child pornography is a minimum of 5 years in prison for a first-time offender.
But Berger’s sentence was upheld by the Arizona Supreme Court and the US Supreme Court refused to hear his case.
McIntyre, the Cochise County Attorney, said he doesn’t know whether Arizona’s laws on child pornography are the toughest in the country, but he hopes the strict penalties serve as a deterrent.
“I know that we have very strict laws … and every court that has reviewed the laws has upheld them, and the reason is simple. We have a legitimate state interest in protecting our children,” he said.
“Typically when we indict child pornography cases, most places will indict 20 counts — but the reality is that person probably possessed hundreds, if not thousands, of images,” he added. “So even if they are sentenced to what Mr. Lotsof suggests is a draconian number of years, that’s actually a small fraction of the crime they actually committed.”
‘Reprehensible,’ but maybe not illegal
Benson Mayor Toney D. King said someone brought the PSA to his attention Saturday and he immediately contacted City Manager Bill Stephens to investigate.
“We have a really nice tight-knit community and this really caught us by surprise,” King said. “I personally feel this is reprehensible, very disturbing, very irresponsible, and very unacceptable. I have children and grandchildren of my own.”
Stephens, the city manager, said the city received complaints about the PSA because it recently began airing at a new time when more people were awake.
An online petition also is urging people to file complaints with the Federal Communications Commission in an attempt to get the station shut down.
The FCC has received a handful of consumer complaints about the PSA and are reviewing them, said Will Wiquist, a deputy press secretary.
“The FCC has yet to reach any conclusion,” Wiquist said. “Consumers should continue to file complaints if they have concerns about this and we will review them.”
County law enforcement are investigating the matter, but laws and the Constitution may protect Lotsof against any criminal charges or even from authorities getting a search warrant for his property, McIntyre said.
“Based on the information that we have, he is someone talking about his disagreement with the law. That doesn’t equate to probable cause to believe that he is presently engaged in possessing the stuff he’s talking about, and that’s where the First Amendment comes in,” McIntyre said. “The First Amendment really does protect us all, even the ones we don’t want to protect.”
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