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A Great Victory and Word of Caution

A Great Victory and Word of Caution

June 16, 2012
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" But it is important to note that the 2257 regulations are in serious constitutional jeopardy in large part because of the 3rd Circuit’s ruling that they apply to purely private communications. "

The adult entertainment industry’s multi-decade war against the federal record keeping and labeling statutes, known to many as the 2257 regulations, recently received one of its biggest victories in years.

Specifically, a 3rd U.S. Circuit Court of Appeals tribunal reversed a lower court’s earlier decision to dismiss a case brought against the government by the Free Speech Coalition and other plaintiffs seeking to invalidate the 2257 regulations on constitutional grounds.

Because of the ruling, the case will now go back to the federal district court in which it was filed for further proceedings.

There is good reason for the adult entertainment industry to celebrate this great decision, and to congratulate FSC, its co-plaintiffs, and the plaintiff’s attorneys for a job well done indeed. While the 2257 regulations are still, unfortunately, quite alive and well, in light of the 3rd Circuit ruling, the ultimate constitutionally of the regulations is now more in doubt than perhaps at any time in the past.

But it is important to note that the 2257 regulations are in serious constitutional jeopardy in large part because of the 3rd Circuit’s ruling that they apply to purely private communications.

This interpretation supports the plaintiff’s contention that the statutory foundation of the 2257 regulations, 18 U.S.C. § 2257 and 18 U.S.C. § 2257A, are unconstitutionally overbroad because they apply to far more expression than necessary.

In its opinion the court recognized the plaintiff’s assertion “that the statutes are substantially overbroad because they burden the entire universe of constitutionally protected expression involving sexually oriented images of adults—including private, noncommercial depictions created and viewed by adults in their homes.”

The court then acknowledged the government’s counter-position stating that, “the statutes’ scope should be narrowly construed as applying only to depictions of actual or simulated sexually explicit conduct created for sale or trade, and thus, producers of purely private depictions would not be subject to the statutes.

In support of this position, the government cites the preamble to the regulations, which states that the government interprets the statutes as being “limited to pornography intended for sale or trade.” 73 Fed. Reg. at 77,456. The government also points to specific terms in § 2257 that it asserts speak primarily to the creation of images for industry distribution, such as “sexual performers,” “places of business,” and “normal business hours.”

But despite the government’s arguments, the court completely rejected the government’s interpretation that the 2257 statutes only apply to commercial depictions. In support of its ruling, the court stated:

“[T]he plain language of the statutes makes clear that they apply broadly to all producers of actual or simulated sexually explicit depictions regardless of whether those depictions were created for the purpose of sale or trade. See, e.g., 18 U.S.C. §§ 2257(a) and 2257A(a) (stating generally that “[w]hoever produces” any book or other matter containing “visual depictions” of actual or simulated “sexually explicit conduct” shall be subject to the statutes). It is axiomatic that regulations cannot supersede a federal statute. As a result, the plain text of the statutes setting forth their broad scope must trump any conflicting statements contained within the preamble to the regulations, including the assertion that the statutes are “limited to pornography intended for sale or trade.” 73 Fed. Reg. at 77,456.

Similarly, the regulations’ definition of “producer” also belies the government’s position. As discussed supra, the regulations define “producer” as a primary or secondary producer. 28 C.R.R. § 75.1(c). A primary producer is defined as any person who creates a visual depiction of a human being engaged in actual or simulated sexually explicit conduct. Id. at (c)(1). The definition of a primary producer is silent as to whether the depiction must be intended for commercial distribution. Id. A secondary producer, however, is defined as any person who, inter alia, publishes a magazine or other matter containing a visual depiction of a human being engaged in actual or simulated sexually explicit conduct, which is “intended for commercial distribution.” Id. at (c)(2) (emphasis added). Thus, because the definition of “secondary producer” limits its scope to those depictions created for commercial distribution but the definition of “primary producer” does not, the clear implication is that “primary producer” is not limited to those who create depictions for commercial distribution.”

The court then completely rejected the government’s interpretation that the 2257 statutes apply only to commercial content concluding that “the statutes are not susceptible to such a limiting construction.”

It was encouraging indeed to see that the court also didn’t buy the government’s claim that its interpretation of commercial - only application of the regulations provided adequate protection of private communications from government overreaching.

“After all, there is no guarantee that the government’s current interpretation of the statutes will remain unchanged. The government’s interpretation that the statutes are “limited to pornography intended for sale or trade,” was made in the preamble to the regulations.... Limiting statements in regulatory preambles, like assurances of prosecutorial discretion, may one day be modified by the executive branch to permit the exercise of the statutes’ full authority.”

I think that there are few, if any, adult entertainment attorneys that believe that the government’s position to limit its own authority to prosecute violations of the 2257 statutes is, or was ever, motivated by a desire to respect the rights of citizens to privately exchange explicit sexual content. One need only look to the fact that the government has never similarly self-limited its authority to enforce the obscenity laws to commercial situations.

In the case of 2257 regulation, the government’s uncharacteristic self-limitation can only be reasonably attributed to a strategy of trying to protect the 2257 statutes from the kind of risk of invalidation that they now face.

Now, because of the 3rd Circuit’s ruling, the case will go back to the trial court where FSC and its co-plaintiffs will have the chance to show that large numbers of private citizens’ purely private sexual conduct is within the ambit of the 2257 regulations. That, for example, even content incidentally transmitted via Skype and Face Time video phone calls between spouses and other people where a party to the call is frontally nude or engaging in sexual activity is subject to record-keeping and compliance statement obligations.

Hopefully, when presented with evidence of the truly breathtaking and insidiously overreaching scope of the 2257 statutes, the district court will strike them down for the overbroad legislative abominations that they are.

But while we may all celebrate the court’s smackdown of the government, one should not lose sight of the fact that the ruling also makes clear, for the first time by any appeals court, that the regulations do in fact apply in full force to non-commercial user generated content. This could have profound implications for the adult entertainment industry as it continues to create and exploit more and more business models that depend on explicit user-generated content and other non-commercial transmissions of explicit user-generated depictions among private parties.

In what I hope doesn’t turn out to be a case of “be careful what you ask for”, the ruling ironically could potentially negatively impact adult entertainment businesses that knowingly provide the means for explicit noncommercial usergenerated content transmission between members and/or other types of users. For example, some dating sites, tube sites and cam sites, knowingly provide users with the means to non-commercially upload and transmit explicit content that they have created.

This is often done with an adult entertainment company’s direct or indirect encouragement. If such users are subject to, but not compliant with, the 2257 regulations, companies that knowingly assist such criminal activities could themselves become criminally liable for aiding and abetting the illegal conduct of the users.

In general, a criminal charge of aiding and abetting can be brought against a person who helps in the commission of a crime by knowingly providing advice, assistance, financial support, or other enabling actions. Depending on the degree of involvement, the offender’s participation in the crime may even rise to the level of a criminal conspiracy. If an adult entertainment company knowingly assists violation of the 2257 regulations by users, the company and its principals could potentially be prosecuted for aiding and abetting such criminal activity.

Fortunately, at the present time it appears unlikely that the government will actively prosecute private citizens for violations of the 2257 regulations involving non-commercial distribution of explicit content. The government has said it would not do so, and any such action would clearly undermine what appears to be the government’s current strategy of trying to portray the 2257 statutes as narrowly tailored regulations of expression. Because of this, it also seems unlikely that adult companies providing private parties with the means to distribute their explicit noncommercial content will be targeted by the government for aiding and abetting 2257 regulation violations any time soon.

But if the 2257 statutes survive the current constitutional challenge in spite of the 3rd Circuit’s ruling that the 2257 statutes apply to private noncommercial sexually explicit depictions, will the government change its position? Would there still be a motivation to self-limit the scope of governmental power to prosecute non-commercial 2257 violations? Would a republican administration maintain the current administration’s policy regarding the limited scope of enforcement of the 2257 regulations as more and more people producing explicit user generated content are depicted by cultural conservatives as a corrupting cultural influence?

These questions cannot be definitively answered at the present time. But, hopefully, they will all be moot issues that will never have to be addressed because of a dispositive constitutional invalidation of the 2257 statutes in the not too distant future. I think we should all visualize that reality and support FSC and its co-plaintiffs with everything we’ve got.

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


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