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Industry Alert: Senate Agrees to Revamping of 2257 Statute
By: Mark Kernes (Courtesy of
Posted: 7/23/2006

Chatsworth, Calif. – What do Megan Kanka, Jetseta Gage, Jessica Lunsford, Sarah Lunde, Amy Zyla, Christy Ann Fornoff, Polly Klaas, Jimmy Ryce, Carlie Brucia, Amanda Brown, Molly Bish, Samantha Runnion and Adam Walsh all have in common?

1) All were minors who were abducted, in most cases sexually assaulted, and murdered over the past 15 years, and 2) all have been pressed into service posthumously by Congress this week to restrict Americans’ right to enjoy sexually explicit material.

Yesterday, the U.S. Senate passed its version of House Resolution (H.R.) 4472, now titled the Adam Walsh Child Protection and Safety Act of 2006, with minor changes that are sure to find approval in the House, and President Bush is expected to sign the bill into law on July 27.

Why July 27? Because on that date, 25 years ago, six-year-old Adam Walsh was abducted from a mall in Hollywood, Florida, to be discovered dead in a canal 100 miles from his home two weeks later – so what better date to sign a bill, most of whose provisions create new categories of offenses and increase penalties for child sexual abuse, child prostitution and trafficking in children?

But Title V of that bill, the section titled "Child Pornography Prevention," also revamps 18 U.S.C. §2257, the statute derived from the Child Protection Restoration and Penalties Enhancement Act of 1990, whose effect will be to put more adult content producers at risk for federal prison sentences and fines, even though they deal exclusively in material made by adults, for adults.

The duplicity used by congressional theocrats in passing this bill is first evident in Title V’s "Findings" section, which talks about "[t]he effect of the intrastate production, transportation, distribution, receipt, advertising, and possession of child pornography on the interstate market in child pornography." The section rightly notes that there is evidence that the making and distribution of child porn is harmful to the child, and "has a substantial and detrimental effect on society as a whole"; that it’s a multimillion dollar industry; and that child porn is widely traded, both through the mails and on the Internet. As such, the "Findings" claim, child porn has "a substantial and direct effect upon interstate commerce" even though "[m]uch of the child pornography that supplies the interstate market in child pornography is produced entirely within the boundaries of one state, is not traceable, and enters the interstate market surreptitiously."

Those last points are important, since Sec. 506 of this Act amends 18 U.S.C. §1465 to add "production of obscenity" to the already-existing crimes of transportation, distribution and sale of obscene material. This section obviously draws on the recent Supreme Court decision in Gonzales v. Raich, which allowed federal agents to target medical marijuana suppliers and users even in states where such sale and use is legal, on the specious premise that even if all the marijuana is grown and distributed within the state, it nonetheless has an effect on interstate commerce, thus allowing the federal government to attempt to regulate this purely intrastate industry. How this addition to the federal obscenity laws will shake out in practice remains to be seen – but it is unlikely to be beneficial to the adult entertainment industry.

But the main thrust of Title V is the revamping of §2257, both to update the section to bring it into the digital age, but more importantly, to codify by statute the overbreadth contained in the Justice Department’s regulations allegedly drawn from the Child Protection Restoration and Penalties Enhancement Act. That overreaching reached astronomical heights with Attorney General John Ashcroft’s 2004 revised regulations, which were put into effect by his successor, Alberto Gonzales, in June of 2005, and which are currently "on hold" for members of the Free Speech Coalition due to FSC’s lawsuit against those regulations.

For instance, H.R. 4472 adds producers of any "digital image" or "digitally- or computer-manipulated image of an actual human being" to the list in subsection (a) of §2257 of those who must keep records of performers of "actual sexually explicit conduct" and index them, while another section adds a §2257 labeling requirement, already mandatory for every magazine, videotape and DVD containing sexually-explicit matter, for "every page of a website on which matter described in subsection (a) appears."

H.R. 4472 also strikes the phrase "identification document" from §2257, thereby apparently allowing the list of acceptable forms of identification listed in the regulations – passport, driver’s license, green card, etc. – to become the only officially accepted IDs.

But the most dramatic change in §2257 is hidden away in subsection (h)(2)(B)(iii), ostensibly in the section that lists those people exempt from the recordkeeping requirements.

§2257(h)(2)(B)(iii) now reads that the term "produces … does not include activities that are limited to … any activity, other than those activities identified in sub-paragraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers."

The trouble is, sub-paragraph (A) defines "produces" to mean "(i) actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being; (ii) digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or (iii) inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct."

But the "digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct" is exactly what the Justice Department, in its §2257 regulations, has been referring to as the definition of a "secondary producer" – and it’s that definition, which had no basis in the original Child Protection Restoration and Penalties Enhancement Act, that was struck down by the Tenth U.S. Circuit Court of Appeals in the famous Sundance Associates v. Reno case as being an unwarranted interpretation of the statute. The Justice Department never bothered to appeal that 1998 ruling, but since it was therefore the established law in the Tenth Circuit, many adult businesspersons even outside the Tenth Circuit have followed that ruling, and the Justice Department never challenged that practice until the issuance of the 2005 revised regulations. H.R. 4472, when it’s signed into law, will place just such a "secondary producer" definition (though not those exact words) into the statute itself.

Of course, the concept of "secondary producer" is one of the primary facets of Free Speech Coalition’s lawsuit filed last June against the Justice Department, and since that suit was filed in the Tenth Circuit, the presiding judge in the case, Judge Walker D. Miller, was required to follow the law of his circuit and issue an injunction against the government attempting to apply its "secondary producer" definition to the plaintiffs in that lawsuit, which includes all Free Speech Coalition members, and according to one legal analyst, that injunction won’t change even after the passage of H.R. 4472.

"Whatever either side thinks is the effect of this new statutory amendment, it will have to go back to Judge Miller and make those arguments, and he’ll decide," explained First Amendment attorney and FSC board member Reed Lee. "For instance, the government may think that the portion of the injunction concerning secondary producers in now moot and should be lifted. We of course will argue that there are constitutional issues, which means that that part of the injunction is perfectly proper. We may go further and say that there are now a whole bunch more reasons why Judge Miller should enjoin and restrain enforcement of even more of the regulations, so nothing will happen without Judge Miller modifying the injunction one way or another, and any modification or refusal to modify will be immediately appealable."

Lee went even further, however, and suggested that H.R. 4472 may even strengthen FSC’s case against the §2257 regulations.

"We’re going to argue that the change in the definition of ‘producer’ shows that the previous definition of ‘producer’ – that is, the current one – did not support the notion of ‘secondary producer’," Lee added, "so that there can be no secondary producer culpability at least until the effective date of the amendment, and we’re going to have a bunch of constitutional issues why there shouldn’t be secondary producer culpability after that."

So does that mean that the government’s actions regarding "secondary producers" will depend more on Judge Miller’s injunction than the passage of this Act?

"Oh, right," Lee agreed. "In terms of any changes to the injunction, that will be for Judge Miller to make in the first instance, then the appellate court, and everybody has understood this litigation may go all the way [to the Supreme Court]."

But the "secondary producer" concept is only one way H.R. 4472 will affect how the adult industry continues to do business. For instance, note that "digitizing an image, of a visual depiction of sexually explicit conduct" makes someone a "producer" under §2257, and therefore subject to the recordkeeping and labeling requirements of producers. Note further that this section of the Act makes no mention of whether this digitized "image of a visual depiction of sexually explicit conduct" is exempt under either the Act or the regulations. This implies that the mere act of digitizing – scanning – an exempt image for commercial purposes makes that image non-exempt and subject to the recordkeeping and labeling requirements of the Act, and in many cases – perhaps the vast majority of cases – those records no longer exist, or were never created in the first place. This will create major problems for companies that want to market golden-age titles, since they may not have the name and address of the primary producer’s custodian of records to put on the required label.

Another clause of the Act is particularly puzzling. In a paragraph labeled "Construction," the Act reads, "The provisions of section 2257 shall not apply to any depiction of actual sexually explicit conduct as described in clause (v) of section 2256(2)(A) of title 18, United States Code, produced in whole or in part, prior to the effective date of this section unless that depiction also includes actual sexually explicit conduct as described in clauses (i) through (iv) of section 2256(2)(A) of title 18, United States Code."

"Clause (v) of section 2256(2)(A) of title 18, United States Code" is part of the definition of "sexually explicit conduct," and reads, "lascivious exhibition of the genitals or pubic area of any person." Lascivious exhibition had previously been entirely excluded from the requirements of §2257, but with H.R. 4472’s changes to the law, lascivious exhibition will apparently now be included if the material also depicts sexual intercourse, bestiality, masturbation or sadistic or masochistic abuse, all referenced in clauses (i) through (iv) of §2256(2)(A).

However, the purpose of the "Construction" caveat seems to be a reference to the entirely new recordkeeping and labeling requirements created by Sec. 503 of H.R. 7742, "§2257A – Record Keeping Requirements For Simulated Sexual Conduct."

Yep, you read right: All of those Hollywood movie producers (not to mention producers of late-night cable fare) of "simulated sexually explicit conduct" will be required to "create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction" – maybe.

Why "maybe"? Well, leaving aside the fact that nowhere is "simulated sexually explicit conduct" defined – let’s not forget that Stephen Knox was imprisoned for videotaping the genital areas of clothed children on a playground – check out §2257A(h)(1):

"(h)(1) The provisions of this section and section 2257 shall not apply to matter, or any image therein, containing one or more visual depictions of simulated sexually explicit conduct, or actual sexually explicit conduct as described in clause (v) of section 2256(2)(A), if such matter–  

 "(A)(i) is intended for commercial distribution; [and]

 "(ii) is created as a part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer…" [Emphasis added]

So in other words, if the subject is simulated sexually explicit conduct (whatever that is), and whoever’s producing a work containing such material keeps, for instance, an IRS W-2 form for each performer, that producer may not be required to keep any additional record for §2257A purposes – which is bound to be a relief for any mainstream producer, since the recordkeeping and indexing requirements for §2257A are just about as onerous as the requirements for §2257.

All well and good … but what about labeling? §2257A(c) requires that "[a]ny person to whom subsection (a) applies shall maintain the records required by this section at their business premises, or at such other place as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times."

Now, that requirement is slightly different from a similar (and new) requirement in §2257, which makes it a crime "for any person to whom subsection (a) applies to refuse to permit the Attorney General or his or her designee to conduct an inspection under subsection (c)," [emphasis added] but it should still be problematic for mainstream performers to have records of their real names and home addresses available at some location for anyone off the street – a potential stalker, for instance – to come in and "inspect." (After all, there is still no statute or regulation which defines just who is a "designee" for purposes of inspecting §2257 or §2257A records, and to refuse to allow anyone who claims to be such a designee to perform a records inspection may be a crime!)

Those are some of the more obvious concerns embodied in H.R. 4472, which will be significantly more of a problem for producers who are not members of Free Speech Coalition, and it seems likely that more subtle problems will arise as the Justice Department attempts to implement this bill’s provisions. Keep watching this site for updates on this issue so vital to the adult entertainment industry.

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