You’ve Come a Long Way, Baby!
Last November, the adult entertainment industry heaved a collective sigh of relief at the news that Barack Obama had been reelected. Widespread concerns that a Romney victory might usher in a new era of federal prosecutions were, in my opinion, not at all unreasonable.
But now what? Is the federal government finally out of the obscenity prosecution business? Can adult entertainment companies ignore their federal record keeping and labeling obligations under the 2257 regulations now that the government has admitted it has no immediate plans to resume inspections? Is the industry’s long national nightmare of government prosecutorial intimidation finally over? Could it be that the war against the censors of erotic expression has been won?
Some say yes. Others, including some prominent industry attorneys, say, absolutely not! My answer is, well, a bit more nuanced.
I think that the traditional prosecutorial landscape for the adult entertainment business has indeed permanently changed for the better. But I am not willing to declare “Mission Accomplished” just yet. There is nothing in the government’s admission of its suspension of 2257 inspections, for example, that would cause me to do anything other than advise my clients to continue to fully comply with all of the 2257 regulations.
But with adult content freely available via the web in virtually limitless quantities just about everywhere in the U.S., I can see how to many, the industry’s multigenerational battle with the government over erotica has, of late, begun to appear all but won.
But things are not always what they appear to be. And the situation brings to mind a costly lesson learned after World War I that might be apropos, for analyzing the current status of the industry visà-vis its war with censorial governmental regulation.
Despite all the effort that went into making the first World War the “war to end all wars”, No. 2 proved that those efforts would fall a bit short of that goal. Leaving aside all the political and economic causes of the second great war, one of the reasons why the French military establishment failed to prevent a new German invasion was that the primary defenses that had been erected to repel such an invasion were designed to confront a World War I-type German invasion. These land defenses, called the “Maginot Line”, consisted of a line of concrete fortifications, tank obstacles, artillery casemates, machine gun posts, and other defenses, which France constructed along its border with Germany.
To the great misfortune of Europe, the Maginot Line became what is perhaps the best known symbol of the adage that “generals always fight the last war, especially if they have won it”. In the intervening years between the world wars technology developed the means for rapid mobile force deployment, including by aerial means.
Simply put, advancements in technology allowed Germany to invade France in the second World War by quickly endrunning the Maginot Line through neighboring Belgium with support from its air force that simply flew over Maginot Line.
So how is this relevant to an evaluation of the risks the adult industry currently faces from government? Well, I don’t want to see adult entertainment businesses make the same mistake the French generals did by focusing on past dangers at the risk of failing to detect and prepare for future threats.
So, in no small part because I detect a lot of French-general like complacency among adult entertainment companies regarding the risk of governmental actions, I think it may be useful to share my thoughts about traditional and emerging legal risks facing the industry today.
For the couple of decades explicit adult content publishers and distributors have been primarily concerned about the risks of obscenity prosecutions or prosecutions for non-compliance with the 2257 regulations.
During President Obama’s first term there were no new obscenity cases commenced by the federal government and no actions of any kind under the 2257 regulations. Currently, there is no indication that any such actions will be commenced during Obama’s second term.
Because of this, and because democratic administrations generally tend to be more permissive regarding adult content, my assessment of the risk of federal obscenity prosecution, for mainstream adult content at least, is that the risk is fairly low. Similarly, given the government’s admission that it is not currently in the 2257 inspection business, I think that the risk of enforcement of the 2257 regulations during the Obama Administration is also likely to remain fairly low.
But even though the current administration may not bring an obscenity or 2257 enforcement action, it is important to note that such actions are subject to a five-year statute of limitations. This means that violations under either of these laws committed today, for example, could theoretically be prosecutable by the next administration, which may not be as permissive as the current administration.
This is a concern that must be taken seriously because it is fairly rare that the White House continues to be occupied by the same party for more than two presidential terms. If that historic tendency is repeated in 2016 and a republican candidate is elected, there will likely be an increased risk of renewed interest in federal obscenity prosecutions and 2257 regulation enforcement.
To be sure, the risk of abusive governmental treatment of adult content producers through the enforcement of the federal obscenity laws or the 2257 regulations does seem to be waning for the time being at least. But, unfortunately, just as those threats seem to be declining, new kinds of regulatory challenges are emerging that may, in the long run, have more of an impact on explicit adult content production in this country than all of the obscenity and 2257 enforcement of the last quarter century combined.
These new threats arise principally in situations where state or local governments are motivated by private parties to act against the adult entertainment companies. This motivation can occur either through lobbying for the enactment of new laws or through the passage of ballot initiative measures.
Recent enactment of laws in California requiring the use of condoms in the production of adult content is a good case in point. One of these laws, effective in the city of Los Angeles, ties the granting of film permits to mandatory condom use on sets and imposes a fee on producers to fund unannounced inspections. The law was first introduced as a proposed L.A. City ballot measure by AIDS Healthcare Foundation (“AHF”). The L.A. City Council-anticipating that themeasure would likely have passed, voted instead, as permitted by law, to adopt the measure outright.
A second mandatory condom law, known as Los Angeles County ballot initiative Measure B, was voted into law last November. The ballot initiative was also spearheaded by AHF. Measure B requires condom use in the production of adult motion pictures made in Los Angeles County. It also requires that adult film producers obtain a public health permit from the county and observe all health and safety laws, including Cal/OSHA’s bloodborne pathogens standard, General Industry Safety Orders §5193, which requires barrier protection. This, provision, if applied literally, will by the terms of §5193, require performers and crew to wear what would effectively be hazmat suits during the production of explicit sex scenes. Industry representatives have filed suit to challenge Measure B on constitutional grounds.
More recently, a third mandatory condom law has been proposed, this time in California’s State Assembly as Assembly Bill 332 (“AB 332”). The bill was sponsored by AHF. If AB 332 is enacted it could potentially be much more problematic for adult industry producers in California than any mandatory condom laws currently in effect. The law, like Measure B, would require mandatory condom use in production and an exposure control plan in accordance with General Industry Safety Orders §5193. But AB 332 will also require that adult content employers “to make available the hepatitis B vaccination for any employee engaged in the production of adult films, at the employer’s expense.” It will also require an employer to “pay the costs of required medical monitoring such as STD testing and keep confidential employee records.” Also, unlike Measure B and the LA City condom law, AB 332 will apply to production throughout the California.
Another example of where private actors are strongly influencing governmental regulatory actions that could have a profound affect on the adult entertainment industry is in the area of new laws prohibiting human trafficking.
Several organizations, such as the Polaris Project and Shared Hope International have been very active introducing legislation in many states with the aim of passing new laws that increase criminal penalties associated with sex trafficking and moving resources to law enforcement.
Last November California voters also voted into law a new antitrafficking law, Prop 35. Violators of the law could face criminal penalties for trafficking that include fines of between $500,000 and $1 million, prison sentences ranging from five years to life, registration as a sex offender, and required lifelong Internet monitoring. Human trafficking, as most people understand the term, is a loathsome thing. Because most people associate the term of “trafficking” with human slavery or forced sexual bondage, it is not surprising that the proposition passed with overwhelming voter approval.
Unfortunately, however, the reach of Prop 35 is so breathtakingly broad that it could sweep within its ambit some activities by adult entertainment companies that most voters who voted for the proposition would never have equated with human trafficking. The problems that Proposition 35 poses for adult content producers arise from the fact that Section 6 of Prop 35 adds to California Penal Code Section 236.1 the following section:
(c) Any person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking.“
This is important for adult content producers in California because Sections 3.11.1, 3.11.2, 3.11.3, 311.4, 311.5 and 3.11.6 all deal with California obscenity law violations. For example Section 3.11.2 prohibits the sale or distribution of obscene matter and Section 3.11.6 prohibits the production of an obscene live performance.
Now, please note that Section (c) above does not require that the person guilty of human trafficking must have known person was a minor beforehand. Amplifying the view that no knowledge of the person’s minor status is required under Prop 35, the law also amended Section 236.1(f) of the California Penal Code to read, “Mistake of fact as to the age of a victim of human trafficking who is a minor at the time of the commission of the offense is not a defense to a criminal prosecution under this section.”
Proposition 35, therefore, can apparently be applied to situations where an adult content producer unknowingly “causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor ... to engage in a commercial sex act” (e.g., like performing in an adult movie or in a live cam show). And if that happens, as it sometimes does when performers lie about their age and present a good fake ID, the producer, thanks to Prop 35, will be a “human trafficker”, subject to punishment “by imprisonment in the state prison [for] five, eight or twelve years and a fine of not more that $500,000.” And if the activity “involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person,” then the producer could face punishment of 15 years to life in prison and a fine of not more than $500,000.
Because of efforts by groups such as the Polaris Project and Shared Hope International, and because it is somewhat the current legal cause célèbre, many states have recently adopted new anti-trafficking laws and many are considering doing so.
For example, the Nevada legislature is considering AB67, which, if passed in its current form, could present some very serious problems for adult content producers who shoot explicit adult content in Nevada. Like California’s Prop 35, AB 67 stiffens penalties currently existing under Nevada laws for human trafficking. But unlike Prop 35, AB 67 also provides to persons who are victims of human trafficking a right to bring civil lawsuits against persons who “trafficked” them. In such civil actions, victims of trafficking could sue for recovery of illgotten gains resulting from the trafficking.
The problems posed by AB 67 for adult content producers stem from the way AB 67 defines what constitutes human trafficking and who is a victim of human trafficking. The definitions are so broad that, if passed in its current form, AB 67 would cause a person who has violated Nevada’s anti-pandering law, NRS 201.300 to be defined as a human trafficker. NRS 201.300 provides in pertinent part that a person who encourages, entices or compels a person to become a prostitute or to continue to engage in prostitution or receives, gives or agrees to receive or give any money or thing of value for procuring or attempting to procure a person to become a prostitute or to come into or leave Nevada for the purpose of prostitution, is guilty of pandering.
So what is prostitution under Nevada law? One must turn to NRS 201.295 for that answer. In short, prostitution in Nevada is engaging in sexual conduct for a fee. “Sexual conduct” in Nevada is, in turn, defined as any acts set forth in the definition of a “prostitute” which states that “prostitute” means a male or female person who for a fee engages in sexual intercourse, oral-genital contact or any touching of the sexual organs or other intimate parts of a person for the purpose of arousing or gratifying the sexual desire of either person.”
Unlike California, where the hiring of performers to have sex in an adult motion picture is not pandering because of a California Supreme Court decision in People vs. Freeman, Nevada has no comparable state supreme court decision that would insulate adult content producers from prosecution for pandering under NRS 201.300.
This means that if AB 67 is enacted in its current form producers who hire performers in Nevada to have sex in adult content run the risk of not only violating Nevada’s anti-pandering law, but also the risk prosecution as human traffickers and possible lawsuits by the performers for revenues generated from the trafficking.
So, do I think the adult entertainment industry has won the war? Well, the adult entertainment industry has certainly won the culture war. Adult entertainment is clearly here to stay. Those who have battled to “stamp out porn” or make it extremely difficult for consumers to obtain have failed to do so.
But that said, I don’t think the industry has vanquished its foes by any means. It has won some major battles, to be sure. But as long as there are people that have a hard-on for the industry or a greedy desire to pick the pockets of adult entertainment entrepreneurs, this industry will always have an unusually large target painted on it.
So, to conclude, I will dive into another historical period, the 1960s, which was a time that was rich in memorable slogans, to say of the industry’s legal progress “you’ve come a long way, baby.” Erotic expression has become more generally accepted than at any time in our nation’s history. But the adult industry is still a long way from the promised land. The foes of erotic expression have certainly not disappeared. In fact, in some ways they are becoming more dangerous as their tools and tactics change and evolve, just like the weapons of war did in the 1930s. That is why I think that now, more than ever, is not the time for celebration or complacency, its time to prepare for the next war.
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 email@example.com.