Nebraska LB 837 (1999)

Nebraska is unique among U.S. states, because it has only one house in its legislature. The unicameral system, as it's called, is touted as being fast and efficient. In fact, Governor Jesse Ventura of Minnesota has proposed converting his state's legislature to be unicameral like Nebraska, just for the money it would save.

A big disadvantage of a unicameral legislature, as seen by Naturists, is that legislation can just fly through a single house. In Nebraska, where every state lawmaker is a senator, a single committee hearing followed by one floor vote can yield a brand new anti-nudity law for the governor's signature.

Sen. Kermit Brashear

In 1998, powerful Nebraska Senator Kermit Brashear (R-Omaha) introduced Legislative Bill 1349, a measure intended to criminalize the possession or distribution of any "compilation" that included more than three pictures or visual representations of nude children.

The bill was a legislative overreaction to a manufactured "public outcry" concerning the works of photographic artists like Jock Sturges, David Hamilton and Sally Mann, who often include non-sexual pictures of nude children among their popular published collections. Although their works had already passed the First Amendment scrutiny of various courts, Sturges, Hamilton and Mann had become targets for elements of the religiously-driven right.

Atty. Genl Don Stenberg

Hoping to ride what he saw as a moral groundswell, Nebraska's attorney general (and U.S. Senate wannabe) Don Stenberg prevailed upon Sen. Brashear to introduce LB 1349 in the 1998 session of the state legislature. Dubbed the "Child Pornography Prevention Act," the bill seemed sure to pass.

The Naturist Action Committee immediately recognized the damaging impact LB 1349 would have on Naturists. On February 16, 1998, NAC board member Charles Harris prepared a detailed internal analysis of the bill, and on February 18, NAC issued an Action Alert based on that analysis. NAC initiated a letter writing campaign that asked Nebraska Naturists to contact members of the legislature's judiciary committee, which had scheduled a hearing on the bill.

Naturists responded to the NAC Action Alert with strong and persuasive letters. It was, after all, ridiculous for the state of Nebraska to pass a law that would criminalize the family photo albums of many Naturists and practically every issue of The Naturist Society's Nude & Natural magazine.

NAC Board Member Charles Harris

The hearing was held on February 25, 1998 before the Judiciary Committee of the Nebraska legislature. Sen. Brashear was not only the bill's sponsor, but was the chair of the committee, as well. Stung by criticism of the bill from Naturists and others, especially concerning its absurd arbitrariness in setting three pictures as the limit of propriety, Brashear held no committee vote on the bill, and it stalled before ever reaching the floor of the legislature.

Introduced as it was in the second year of the Nebraska legislative biennium, LB 1349 died at the close of the 1998 session.

However, the issue of photography of nude children did not die. Across the nation in 1998, leaders of groups accustomed to protesting at abortion clinics turned the attention of their followers toward book stores carrying the works of Sturges et al. Inflamed by anti-nude rhetoric to believe that simple nude pictures constituted child pornography, protesters entered stores in cities across the U.S. and ripped pages from books by Sturges.

Radiant Identities was one of the books by Jock Sturges that was used to fuel the controversy over "compilations" of pictures.

More than ever, Attorney General Stenberg wanted a law under which he could pursue a high profile prosecution against the photographers, publishers and booksellers, so that he might be portrayed as "protecting the children." Once again, Kermit Brashear introduced such a bill. In the 1999 session it was assigned the number LB 837.

Legislative Bill 837 was virtually identical to its predecessor from the previous year, except that Brashear had made a revision he somehow figured would quiet the opposition to the bill. In a stroke of insight, he had raised maximum permissible number of nude pictures from three to five.

Of course, even if that had made any practical difference (and it didn't), there was plenty left in the newly re-proposed law to alarm Naturists. The most obvious problems with the Nebraska legislation remained the same as in 1998:

The Naturist Society's Nude & Natural magazine documents and celebrates the activities and lifestyles of Naturists, including children who are members of Naturist families. As with most issues of N, the issue shown here (16.2) would have violated Nebraska's proposed "compilation" law, with more than five pictures of nude children. Merely possessing a copy of N magazine within the borders of the state of Nebraska would have been grounds for a felony prison sentence. NAC chairman Bob Morton, who testified before the state legislature's Judiciary Committee, had a copy of the magazine placed into the permanent record of the committee hearing.

1) LB 837 effectively banned Naturist publications in the state of Nebraska. Those publications portray wholesome family nudity in recreational and lifestyle settings and have no sexual connotations whatsoever. Yet LB 837 lumped them and other cultural and artistic depictions of the nude human form into the same category as hard core child pornography. Under the proposed law, even compilations of the respected and much-published works of Michelangelo would have been condemned as child pornography.

2) The bill proposed new definitions that were both arbitrary and unneeded. Existing Nebraska law already protects against the exploitation of children by pornographers.

3) Legislative Bill 837 would have established an impossibly vague standard for determining criminal conduct. Wholesale and retail vendors would have risked being criminalized as felons, even if a publication portrayed Naturist children in a dignified, innocent and positive manner. The same felony criminalization would have applied to anyone who purchased those publications.

4) The U.S. Supreme Court ruled in New York v. Ferber that the First Amendment to the U.S. Constitution limits the conditions under which images of nude children may be censored. In a footnote to that judgment, Justice Sandra Day O'Connor explained that censorship is allowed only when the portrayal of children is of a sexual nature. Legitimate Naturist publications that include photos of children as a natural part of family-oriented Naturist activities do not come close to crossing that line. Nevertheless, they would have been declared illegal under the proposed Nebraska law that makes no such distinction.

5) If, in spite of the U.S. Supreme Court ruling, the state of Nebraska were to attempt to hold publishers and distributors to the state's own separate and punitive standard, it would invite litigation from publishers and others involved in interstate commerce. Had it been enacted, LB 837 would have been a lightning rod for out-of-state attorneys representing not only Naturists, but publishing companies, the entertainment industry, artists, librarians, archivists and others who simply value the First Amendment to the U.S. Constitution.

Once again, the bill was assigned to Sen. Brashear's Judiciary Committee. A hearing on the bill took place in the Nebraska capitol building in Lincoln on March 3, 1999. Naturist Action Committee chairman and executive director Bob Morton testified before the committee. Naturists were joined in their opposition to the bill by supporters of First Amendment free speech issues and others:

Sen. Brashear opened the hearing with an explanation of the proposed law. To the other senators and the citizens in the gallery, he attempted to rationalize how images that are clearly not child pornography when viewed individually would instantly become child porn when considered collectively. The innovative opportunity to view things in that manner, the senator said, was based on federal copyright law, wherein a "compilation" can be different from the sum of its individual works.

Ignoring the fact that a year's worth of fine-tuning of the bill's wording consisted of nothing more than changing the number of images from three to five, Brashear told the committee, "We tried to write this carefully."

Sen. Ernie Chambers

One committee member who obviously wasn't buying it was Sen. Ernie Chambers (D-Omaha). An outspoken critic of poorly written legislation, Chambers marches to a different drummer, a fact that might have been inferred by the fact that he had shown up for the Judiciary Committee hearing wearing a t-shirt and a pair of faded jeans.

The committee was scheduled to hear several bills on the same day, and Chambers, a thirty year veteran of the Nebraska legislature, had demonstrated during earlier testimony on other bills why he has earned the right to wear whatever he pleases to a hearing.

"Do you think that we in the Nebraska legislature are stupid?" he had asked Ron Ross, the Director of the State Department of Health and Human Services.

"There was a longer pause there than there should have been," observed Chambers. "But at least it was the right answer."

During a fifteen minute break in the committee proceedings, NAC's Morton took the opportunity to confer with Sen. Chambers about the upcoming consideration of LB 837. The legislator obviously understood the concerns of Naturists. The bill, he said, was ridiculous.

Aside from Sen. Brashear, the author of the bill, no one spoke in favor of LB 837. After each of the bill's opponents spoke against the measure from a variety of viewpoints,

The floor of the rotunda in the Nebraska capitol (above left) is inlaid with numerous works of art, many depicting classical nudes, including nude children, as in the detail shown here (above right). In fact, the Nebraska statehouse has enough images of nude children that the building itself could be considered a "compilation" that exceeds the limit of acceptability set by LB 837.

NAC Chairman Bob Morton outside the north entrance of the Nebraska State Capitol, where he testified on March 3, 1999. Note the nude family in the 40 foot tall bas-relief that greets lawmakers as they enter and exit the statehouse.

Sen. Brashear responded by asking pointedly how a parent might feel if nude pictures of his or her child were to appear in a magazine or other publication, so when Bob Morton testified, he introduced himself not only as chairman of NAC, but also as a parent of three children whose nude pictures actually have appeared in nudist and Naturist publications.

He handed the committee a copy of Nude & Natural magazine and requested that it be entered into the permanent record of the hearing, saying, "There are enough pictures of my own kids here in this one 'compilation' to run afoul of this proposed law."

In his testimony to the committee, Morton emphasized the fact that LB 837 would prevent Naturists from documenting and celebrating their family-inclusive activities and lifestyle. That type of prior restraint of a fundamental right would force Naturists to respond with vigorous legal action, he promised.

Following the hearing, Sen. Brashear's Judiciary Committee took no further action on Legislative Bill 837, and the 1999 portion of the Nebraska legislative session adjourned in April. The Nebraska Unicameral Legislature meets in biennial sessions, so bills from the first year of a two-year pair can carry over to the second year. Because LB 837 was thwarted in committee and not voted down, it is technically still alive for the 2000 session, and NAC continues to monitor it carefully. As with other carryover bills, the title was reintroduced on January 5, 2000, the first day of the 2000 session. However, Sen. Brashear has shown no desire or willingness to bring the bill back to life.

Inscribed above the north entrance to the capitol (the one facing the 40 foot sculpture of the nude family) is this quotation from Hartley Burr Alexander:

The Naturist Action Committee acknowledges and thanks all who participated in this important success.

Nebraska 1999 LB 837 View the complete text of the proposed state law that would have made felons of Naturists who purchased N magazine. (Note: You will need the Adobe Acrobat Reader to view it.)

State of Nebraska home page Learn about the Nebraska unicameral legislature, unique among the 50 U.S. states.

New York v. Ferber View the landmark U.S. Supreme Court ruling that establishes the limits of censorship involving pictures of nude children. From Cornell Law School's Legal Information Institute.