The End of 2257?
The quoted portion of the sentence above is not from one of my XBIZ or Internext conference presentations. It is nothing less than the words of Judge Cornelia G. Kennedy from the well-reasoned opinion recently handed down by the 6th Circuit Court of Appeals in the case of Connection Distributing Co. et al vs. Keisler.
For those not familiar with the case and its historic ruling on Oct. 23, Judge Kennedy, writing for the majority of a three-judge federal appeals court panel, declared that 18 U.S.C. §2257 is unconstitutionally overbroad. That's right, folks, the 6th Circuit Court of Appeals, one of the second highest courts in the land has struck down the law known to the industry as the 2257 regulations.
Needless to say the 6th Circuit ruling is a tremendously important event for the adult entertainment industry. One that should be noted with enormous gratitude by all in the industry to my esteemed colleague Mike Murray, one of the industry's best attorneys, who has been quietly battling the government in the Connection Distributing case since 1995.
But perhaps more importantly, we should be thankful that Mike's work, the 6th Circuit's decision and the majority's reasoning in support of their decision, all have come together to strike a mighty blow for freedom against those who are eager to deprive us of our cherished rights simply to further their religious agendas. To them, and to all the bigoted religious hypocrites who have wrongfully attacked and lied about the adult industry, such as disgraced former Congressman Mark Foley, I say God bless Mike Murray, Judge Kennedy and concurring Judge Moore. And regarding their excellent appellate opinions that stick it to long time industry foe Sen. Orrin Hatch and all the other cosponsors of the original statute, I say: Amen and hallelujah!
But while we should take a moment to celebrate the victory, and while we may well be witnessing the beginning of the end for ol' 2257, as Yogi Berra sagaciously observed, "it ain't over 'til its over."
A great battle has been won, to be sure, but unfortunately, the war ain't over yet. It is unlikely that the Connection Distributing defeat handed to the government will vanquish the censorial and political ambitions of the industry's foes or stop those who actually want to save the absurd 2257 regulation regime. Moreover, the legal effect of the ruling is, unfortunately, limited to the federal courts located in the states within the jurisdictional boundary of the 6th Circuit: Michigan, Ohio, Kentucky and Tennessee. The Connection Distributing decision will only be binding on the federal courts in those states unless and until the ruling is modified or reversed by the U.S. Supreme Court or the 6th Circuit through an en banc decision (discussed below). Outside of the federal courts in the 6th Circuit, the Connection Distributing decision is not binding legal precedent. Other courts are free to follow, reject or ignore the 6th Circuit's ruling. Consequently, since most adult businesses are located outside of the four states making up the 6th Circuit, the threat of 2257 regulation enforcement will continue to be a significant industry problem for some time.
Consequently, I am sorry to say; it is not yet time to let down your guard. In fact, given that the 6th Circuit's decision is the latest in a string of recent setbacks for the Bush administration's anti-porn efforts, which include stunning defeats in two major federal obscenity cases in Arizona and the striking down of the Child Online Protection Act earlier this year, I can only imagine that there is enormous frustration and a great gnashing of teeth amongst the religious right's self-appointed morality police.
Because of this, and because of what some have termed a politically "do or die" election for the social conservative branch of the Republican Party in 2008, it is not out of the question that we might next see the government lash out against the industry like a wounded and cornered animal.
Remember, the government has almost unlimited resources available to it to harass adult industry entrepreneurs. And the mean-spirited opponents of adult entertainment know that even though it is unlikely that the republicans will retain the White House in 2009, it is also unlikely that Hillary Clinton or any other democrat will seek the dismissal of cases brought against adult industry businesses during the Bush administration, no matter how wrongfully those cases might have commenced.
So how can the industry head off a possible last ditch "scorched-earth" campaign of harassment by the Bush administration? I suggest the following course of action be taken by every person directly participating in the adult entertainment business: Stay informed, continue to comply with the law, and use the mass communication resources available to you to win public support to deter aggressive governmental enforcement.
It is particularly important to follow the legal events reported in the industry closely over the next year as potentially sweeping legal developments significantly affecting the way you do business could materialize seemingly from out of the blue. And like a high stakes poker game, inattentiveness could have some very serious and costly consequences.
As an example of just how dangerous it is to be out of the legal loop, consider the consequences of failing to closely monitor our reporting of changes to the 2257 regulations enacted last year in the Adam Walsh Act.
Many webmasters were not, and many still are not, aware that the statute was amended by Congress to now require that a 2257 compliance statement be affixed to every page of a website that contains 2257 material (see 18 U.S.C. §2257(e)(1)). This change in the law supersedes the Justice Department regulation specifying that such a statement, or a hyperlink to it, was required on "the homepage, any known major entry points or principal URL (including the principal URL of a sub-domain)" (see 75 CFR 75.8(d)).
A failure to stay informed in this instance resulting in a failure to make appropriate changes to a website could constitute a violation punishable by incarceration for up to five years for a first offense and up to 10 years for repeat violations!
Should you think that our government would not send someone to jail for failing to affix a 2257 label, believing that to do so would be as cruel and absurd as incarcerating a person for ripping off a mattress tag, think again. The full enforceability of the compliance statement portion of the 2257 Regulations even was recognized by Judge Kennedy in the Connection Distribution opinion: "Selling, transferring or offering to sell or transfer any material, such as a book or magazine, which includes a depiction of actual sexually explicit conduct without the disclosure statement, with certain exceptions, is a violation of the statute…"
Also, unfortunately, there is now tangible proof that the government will indeed seek to deprive people of their liberty for a decade for merely failing to affix two 2257 compliance statements. The specific case in point is that of a recently indicted Los Angeles adult film producer charged with two counts of violating the compliance provision of the 2257 regulations. He is now facing up to 10 years in jail if convicted on both counts.
Therefore, I strongly suggest that you make the effort to keep abreast of all legal developments pertaining to the 2257 regulations, including those relating to subsequent actions in the Connection Distributing case, the Free Speech Coalition challenge to the 2257 regulations and the Justice Department's publication of amended regulations (28 CFR 75 et seq.).
For example, regarding the future of the Connection Distributing case, all eyes are now on the government as we await its next move. While the Bush administration has a few weeks to decide how to respond to the 6th Circuit decision, at the time of this writing it have not shown its hand.
But looking ahead a bit, we can see that the government now has essentially five options from which it must choose its course of action.
Specifically, it could:
- Request an en banc rehearing in which the appeal would be reviewed by all the judges comprising the 6th Circuit Court of Appeals, as a single panel;
- Petition the U.S. Supreme Court to hear the case;
- Introduce new legislation to modify or supplant the 2257 regulations;
- Have the Justice Department drastically rewrite the proposed amendments to the regulations (28 CFR 75 et seq.) published earlier this year to attempt to address the constitutional problems identified by the 6th Circuit; or
- Do nothing and let the opinion stand.
EN BANC REHEARING
This is most likely the government's next move. It involves the government requesting a rehearing of the appeal from the district court by a super-panel of the entire 6th Circuit appellate judiciary comprised of all the federal judges in the 6th Circuit. If the government chooses to ask for an en banc rehearing, it must do so within a few weeks of the date of the filing of the original tribunal's decision.
So we will soon know if the administration has chosen this course. Unfortunately, given the facts that the president appoints federal judges and that we have had a Republican president for 19 of the last 27 years, the 6th Circuit as a whole tends to be fairly conservative as Republican appointees outnumber democratic appointees.
This is why an en banc rehearing makes the most sense for the government at this juncture. If the 6th Circuit hears the case en banc, a decision is not likely until sometime next year.
The government could also petition the U.S. Supreme Court to hear the case. If the administration chooses this course it will have to do so within a few months. Appeal to the U.S. Supreme Court is neither guaranteed nor automatic. The court only hears cases it chooses to hear, granting only a very small fraction (usually less than one percent) of the petitions it receives.
It is therefore unlikely that the Supreme Court would take up an appeal of the 6th Circuit decision if petitioned, and not at all likely that if it did, it would affirm the ruling given the very conservative makeup of the current court. Consequently, I doubt that the administration will elect to petition the Supreme Court to review the case at this time.
If, however, the Connection Distributing decision is affirmed after an en banc rehearing, the government would then be more likely to seek Supreme Court review. It is noteworthy that such review, if granted by the court, would almost certainly occur during the next administration.
Given that the next president will probably name at least one new justice to the court, there is no telling what might happen if this scenario unfolds. But if the Supreme Court affirms the 6th Circuit's current ruling, 18 U.S.C. §2257 in its current form will join the ash heap of other misguided unconstitutional regulations.
Faced with the uncertainties associated with an en banc rehearing and Supreme Court review, it is possible that the Bush administration might elect to introduce legislation to remedy the constitutional infirmities of the 2257 Regulations cited by the 6th Circuit.
I am troubled by the idea of another round of Bush administration amendments to the 2257 regulations. If this government's previous actions are indicative of how it might try to fix the statute, it is likely that an even more ridiculous law will be proposed.
Compounding my concern is the fact that we are already in the 2008 election cycle and no politician, save presidential candidate Mike Gravel, has demonstrated the courage to stand up for the rights of the adult entertainment industry.
Consequently, I fear that unless the industry acts soon to generate public awareness and support for its right to create and distribute lawful erotica, there could be bipartisan election year support for the passage of an even more onerous version of the 2257 regulations.
The most reasonable, effective, fair and equitable alternative available to the Bush administration, and therefore the least likely one to be chosen, would be to direct the Justice Department to issue a simplified version of the regulations set forth at 28 CFR 75, which would provide to adult content producers the same record-keeping and labeling options recently provided by Congress to mainstream non-adult film producers regarding simulated sexual conduct. Specifically, in 18 U.S.C. §2257A, Congress allows producers of simulated sexual content to be exempt from all the record-keeping and labeling requirements of 18 U.S.C. §2257A, which are virtually identical to those set forth in 18 U.S.C. §2257, by merely providing a letter to the attorney general essentially verifying the producer's compliance with state and federal labor and tax laws. Simple. Clean. Effective. Fair. And unlikely.
While this alternative also is an unlikely choice by the government, unlike all of the other choices, it will not directly jeopardize the current validity and enforceability of the current 2257 Regulations everywhere in the U.S. outside the 6th Circuit. The Government might chose the "do nothing" option because the Bush administration may want to preserve the status quo through the election or beyond for a number of reasons.
For example, the Justice Department might want to exploit the inherent difficulty of defending violations of the 2257 regulations where the defendant has actually failed to comply with the regulations.
If a defendant is charged with failing to affix a proper compliance statement, for example, as is alleged in the Los Angeles prosecution mentioned above, or if a defendant fails to maintain a required copy of an ID, the government might try to obtain a plea bargain that includes the defendant's agreement to permanently exit the adult entertainment business.
If the defendant indeed failed to comply with the 2257 regulations as charged, a full-blown challenge to the constitutionality of the 2257 regulations might be the only reasonable defense available. Given the fact that the Justice Department knows that most adult entertainment businesses do not have the resources required for a protracted legal battle with the U.S., many — if not most — in such a situation are likely to simply cop a plea and get out of the business.
Repeated use of this strategy could cause scores — if not hundreds — of adult companies to close their doors, thereby providing exactly the kind of result the religious right has been praying for — and paying for.
As I hope the discussion above clearly indicates, the 2257 regulations are far from dead. They will still provide to the foes of the industry a formidable weapon that can be wrongfully wielded to punish innocent, hard-working creators and distributors of expressive works protected by the 1st Amendment.
In fact, if the government is indeed embarking on a strategy to obtain obscenity convictions or plea bargains through indictments that include allegations of 2257 violations, we may be moving into a more aggressive phase of enforcement not unlike that seen during the last years of George Bush Sr.'s administration. Consequently, my counsel to clients in the wake of the Connection Distributing decision echoes what my good friend J.D. Obenberger has suggested to me to be the most prudent course of action for the time being: "Business as usual," i.e., continue to comply with the 2257 Regulations.
BUILD PUBLIC SUPPORT
Every adult industry webmaster is a mass communicator capable of reaching millions of viewers. Adult magazine publishers and adult DVD producers also can reach correspondingly large audiences. Millions of patrons walk through the doors of the nation's thousands of gentlemen's clubs and adult bookstores every month. Isn't it time that the vast reach of this business be used to defend itself and every person's right to create and enjoy constitutionally protected erotic works?
The quote at the beginning of this article was written by an esteemed federal judge delivering the opinion of the second highest court in the U.S.
Personally, I believe it should be reproduced on every adult website, played at the beginning of every adult motion picture and prominently displayed on the wall of every gentlemen's club and adult bookstore in the land along with its 6th Circuit Court authorship.
I believe it is a warning that every American deserves to see and a warning that it is time this business delivered.
The 6th Circuit Court of Appeals decision in Connection Distributing is not only a great victory for the industry, it is a validation by one of this country's greatest courts of what this industry has known for years regarding 2257: the government has clearly gone too far.
Producers of erotic content have historically functioned as a kind of oppression early warning system. The rise of fascism, communism, radical Islamic fundamentalism and almost every other oppressive movement has been presaged by the persecution of pornographers and other producers of "unpopular" or "disfavored" speech.
Like canaries in a coal mine who sacrifice their lives to signal the danger of potentially imminent gas explosions, the persecution and destruction of businesses engaged in erotic expression have similarly functioned as harbingers of impending dangers that threaten more than just the right to watch porn.
I think Americans deserve to know just how seriously their rights have been imperiled by a government that ignores the Constitution, abandons reason, and enacts and enforces laws that have been written by the "culture warriors" of the religious right.
If the folks who patronize and support the adult industry were made aware that religious organizations like Morality in Media and the politicians who do their bidding have flat-out lied about adult industry associations with child pornography for decades, for the sole purpose of getting laws enacted to dictate what they see and hear like some American version of Taliban, I think they would be simply outraged.
And an outraged public demanding that their government stop trying to dictate what they can see and hear would not only be good for the adult entertainment industry, it would be good for freedom.
It may not stop the religious zealots, but it just might cause the politicians to think twice about the political consequences of another round of porn persecution.
Gregory A. Piccionelli is an adult entertainment attorney. He can be reached at Piccionelli & Sarno at (310) 553-3375 or at firstname.lastname@example.org.
» This article originally appeared in the December, 2007 issue of XBIZ World Magazine.