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The Future of 2257

The Future of 2257

September 13, 2011
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" Federal prosecutors can now be more confident than ever that prosecutions of 2257 regulations will be able to withstand the inevitable constitutional challenges that would be brought by defense attorneys. "

For several years the adult industry’s legal focus has been on hot button topics like online piracy, and, of course, .XXX. With a Democrat in the White House, adult business owners are understandably less concerned about criminal prosecution than they are about economic survival these days. Because of this, there have been relatively few recent discussions in the industry press about the federal criminal laws known as the 2257 regulations (18 U.S.C. §2257, 18 U.S.C. §2257A and 28 CFR 75 et seq.).

This is unfortunate because the 2257 regulations are alive and well, and could be more problematic than ever after surviving an unsuccessful court challenge brought by the Free Speech Coalition, especially if a Republican president is elected next year.

This is the fifth and final article in a series addressing the subject of compliance with the 2257 regulations otherwise known as “the federal record-keeping and labeling laws.” In previous articles we examined a broad range of 2257 topics ranging from record-keeping particulars such as special performer identification requirements to how the regulations apply to live video chat performances.

We also looked at often overlooked areas subject to the 2257 regulations such as affiliate marketing program materials and nonproducer sales of adult content. And in one article I addressed ten of the most frequently asked questions about the 2257 Regulations.

Throughout the series readers were also reminded of the fact that the 2257 regulations are very serious federal criminal laws and that the Department of Justice has repeatedly stated that any violation of the 2257 regulations, no matter how trivial, is a fully chargeable offense subjecting the offender to up to five years in prison for the first count and up to 10 years for each subsequent count.

In this article I will conclude the series with a look at the possibility of widespread 2257 enforcement and how adult companies can best prepare for that contingency.

2257 enforcement is all about who lives at 1600 Pennsylvania Ave.

Any realistic assessment of whether and when the federal government will restart 2257 records inspections or unleash a wave of 2257 prosecutions turns on who is or will soon be occupying the White House.

It is pretty clear that the President Obama’s DOJ has little interest in recommencing the 2257 records inspection regime initiated by George Bush Jr.

It is even less likely that the current administration will criminally prosecute violations of the 2257 regulations. But all that could change dramatically, and disastrously for the industry, if a Republican president is elected next year.

If a Republican is elected president in 2012, it is almost a certainty that adult entertainment business operators will be facing greater federal scrutiny and a substantially greater risk of prosecution than they do today. Republican administrations have consistently been more aggressive against adult entertainment businesses than their Democratic counterparts. And given the wave of cultural conservatism sweeping the country, I see little reason to think that pattern will not be rewoven when a Republican next occupies the White House.

In the wake of the Republican’s retaking the House of Representatives, anti-porn groups such as Morality In Media have stepped up their efforts to motivate the government to prosecute mainstream adult content under the federal obscenity laws. These groups have become desperate to prove that intolerance for obscenity is still a vital part of the American culture.

It should be a matter of great concern for the adult entertainment industry and for free speech advocates that this view is shared by every declared, and undeclared, Republican candidate for president, except Ron Paul.

Fortunately, mainstream adult content has become exceedingly difficult to successfully prosecute almost everywhere in the U.S. This is because mainstream adult content is widely consumed in virtually every community in the country. This fact, coupled with court rulings like the recent 9th U.S. Circuit Court of Appeals decision, which our firm obtained, requiring the use of a national community standard to evaluate explicit adult content in obscenity cases rather than local communities, makes it clear to government prosecutors that successful mainstream obscenity prosecutions are becoming increasingly difficult and improbable.

But then, there’s 2257 ... a porn prosecutor’s wet dream.

Regardless of how hard it has become to successfully prosecute mainstream adult content, as long as the 2257 regulations are alive and well, there will still be a potent mainstream obscenity prosecution potential.

Here’s why:

The government has at its disposal the ability to simultaneously prosecute adult entertainment companies and their principals for both obscenity and 2257 regulation violations in the same case.

This can be a powerful prosecutorial one-two knockout punch because a very large segment of the adult business is not fully compliant with all the 2257 regulations. This is a big problem given the DOJ’s longstanding policy that any violation of the 2257 regulations, no matter how small, is nonetheless a fully prosecutable and fully punishable violation. If taken at face value, the DOJ’s policy means that an adult entertainment entrepreneur could be prosecuted, convicted and incarcerated for years if there is just one missing identification document in his or her 2257 record keeping system or if he or she failed to use the exact required words in his or her webpage 2257 link.

Because of this, the government has the option of pairing up a relatively difficult prosecution of obscenity counts with a relatively easy prosecution of 2257 counts. In this way a zealous antiporn DOJ (likely if a Republican president is elected next year) may use 2257 violation - paired obscenity prosecutions as a much quicker and more efficient means of forcing a large number of mainstream adult entertainment companies out of the business than via long, difficult, and problematic obscenity prosecutions. In fact, the government could try to use 2257 prosecutions as a means to reestablish the fact that even mainstream content can still be effectively prosecuted under the obscenity laws. Here’s how.

Essentially the government could simultaneously charge a mainstream adult entertainment defendant with both obscenity violations, that the DOJ knows ahead of time would be difficult, if not impossible to prove on its own, and 2257 violations that the government knows would be much easier to prove given the difficulty of full compliance with all of the numerous technical requirements of the 2257 regulations.

Since the 2257 violations, like the obscenity violations, carry potentially multi-year jail terms, the government prosecutor will know that a defendant charged with one or more violations of the 2257 regulations will likely be motivated to agree to a plea arrangement offered by the government that does not involve incarceration.

In the past, such as during previous obscenity prosecution sweeps under Reagan and Bush 41 (which did not involve any 2257 charges), the government has often offered plea agreements that required the defendant to admit that the charged materials were obscene, exit the adult entertainment business permanently, and pay a large fine. A future DOJ under a conservative president might do the same through the use of prosecutions that include both obscenity counts and 2257 counts. If so, given the widespread lack of compliance with the 2257 regulations, the government could potentially use the paired obscenity/2257 violation strategy as a veritable prosecutorial weapon of mass destruction against the industry.

Given that many companies also lack the resources to effectively mount defenses against such criminal prosecutions, it is not inconceivable that scores if not hundreds of companies could be forced out of the business in a relatively short period of time. A cultural conservative prosecutor’s wet dream if ever there was one.

I believe that the adult entertainment industry should take notice of this possibility, particularly since it could provide a motivated antiporn president with an efficient business-like means of crippling a huge segment of the U.S. adult entertainment industry. In my opinion it seems to be a strategy tailor made for someone like Mitt Romney who just happens to be the current Republican front-runner.

Whether viewed on their own as a complex, unfair, and frankly draconian, set of regulations, or viewed as a potential weapon of mass destruction of the U.S. adult entertainment industry in the hands of a future zealous anti-porn administration, it should be clear that 2257 is a ticking time bomb for the industry unless and until it is defused. And with a realistic possibility that the industry could be facing another hostile Republican administration after next year’s election the time to act is now.

So what can we do? Continue to support FSC’s efforts as it appeals the dismissal of its challenge to the 2257 regulations.

Last summer FSC mounted a challenge to the 2257 regulations in Pennsylvania. Unfortunately, earlier this year U.S. District Judge Michael Baylson granted the government’s motion to dismiss FSC’s lawsuit. FSC has, of course, appealed Judge Baylson’s ruling to the 6th U.S. Circuit Court of Appeals. I ask that everyone in the industry continue to support FSC’s efforts to overturn the lower court’s ruling.

But while I am hopeful that the 6th Circuit reverses Judge Baylson’s ruling, I am sorry to say that I must agree with my esteemed friend and renowned industry attorney Larry Walters that FSC is facing a pretty steep uphill battle in its appeal. (See “Reading the Tea Leaves — Discerning the Ultimate Fate of 2257” at XBIZ.com.)

Moreover, for reasons nicely explained in Larry’s article, Judge Baylson’s grounds for dismissal could act as a potential impediment to similar future challenges to the 2257 regulations by FSC. This is truly unfortunate because, as I have indicated above, the industry is going to need to mount another challenge soon.

Support other court challenges to the 2257 regulations.

For the reasons stated in this and other articles in this series, I believe constitutional invalidation of the 2257 regulations should be the primary common legal focus of the adult entertainment industry. I believe it is more important than piracy, more important than cross-sale regulation, and, yes, even more important than problems that are likely to arise from the approval of the .XXX domain.

Because of this I think that any and all bona fide challenges to these unjust, unfair, ineffective and mean-spirited regulations should be supported. Moreover, speaking of the .XXX domain, I am hopeful that the ICM Registry, the administrator of the .XXX domain, will deliver on its promise to generously provide funding for such bona fide challenges, and I hereby call upon ICM to do so.

Fully comply with the law.

Unless and until the 2257 regulations are invalidated, there is but one course of action: fully comply with the law. The 2257 regulations have now survived several constitutional challenges. Because of this, federal prosecutors can now be more confident than ever that prosecutions of 2257 regulations will be able to withstand the inevitable constitutional challenges that would be brought by defense attorneys.

I therefore wholeheartedly agree with Larry Walters’ statement that “any producers who are counting on invalidation of 2257 as their records-keeping strategy need to wake up and read the tea leaves – to mix a metaphor. Moreover, given Congress’s track record lately and waning public approval of the current administration, a rigorous enforcement plan could be very likely if there is a Republican to answer to in 2013.

I hope this series has been useful and informative. I also hope that our discussion of the 2257 regulations will in some way help to bring greater industry awareness of the very important, if not crucial, issues now surrounding this topic.

Copies of all the articles in this series will be available on the XBIZ.com website and by request at greg@piccionellisarno.com.

This article is not intended to be, nor should be considered to be, legal advice. I strongly urge you to seek the counsel of a qualified and experienced adult entertainment attorney familiar with the legal matters discussed in this article.

Gregory A. Piccionelli is an intellectual property and adult entertainment attorney. He can be reached at Piccionelli & Sarno at (818) 201-3955 or greg@piccionellisarno.com.


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