Romney? Perry? 5 Things to Prepare for
Monday, December 12, 2011
It’s the fall of 2011, and the U.S. unemployment rate is at 9.1 percent and the economy appears too many to be heading back into recession. It is not surprising that President Obama’s approval ratings are in the low 40s and sinking. Because of this many operators of adult entertainment companies are (and frankly should be) beginning to grow concerned about the kind of regulatory environment the industry might face if either of the two current republican frontrunners, Mitt Romney or Rick Perry should become the next occupant of 1600 Pennsylvania Ave.
It is certainly a long way to the 2012 election, and a lot can happen between now and Election Day to improve Obama’s chances of re-election. But, unfortunately for him, the odds are not in his favor. No modern president has been reelected since Franklin Roosevelt with a national unemployment rate above 7 percent on Election Day. Currently the Obama administration’s own figures and most economists believe that our nation’s unemployment rate will significantly exceed that figure well into 2013.
So what if Obama is not re-elected and the management of the U.S. Justice Department changes hands. Well, if either of the current GOP front runners is elected in 2012, given their political records, stated personal beliefs and demonstrated enthusiasm to pander to the conservative evangelical base of their party, I sincerely believe that it is likely that the industry will see a level of federal obscenity law enforcement not seen since the Reagan era.
In fact, if either Romney or Perry is elected, the next round of federal law enforcement against the porn industry could see federal prosecutions greater in number and broader in scope than those brought under Ronald Reagan. This is because there are now many more adult businesses and because a Romney or Perry administration would have at its disposal powerful anti-porn laws that were not available to the government during the Reagan years.
Most important of these is, of course, the federal record keeping and labeling laws infamously known throughout the industry as the 2257 regulations (i.e., 18 U.S.C. §2257, 18 U.S.C. §2257A and 28 CFR 75 et seq.).
If you are an adult content producer, adult website operator or if your business otherwise creates adult content or distributes or transmits adult content to or from the U.S. you should already be familiar with this complex set of regulations. If not, I strongly urge you to engage a competent adult entertainment attorney to advise you regarding 2257 regulations as soon as possible. This is because literally any failure to comply with any of the scores of specific requirements in the regulations can subject the violator to up to five years in jail for the first offense and 10 years for each additional offense, plus large monetary penalties.
Unfortunately, a detailed discussion of the 2257 regulations is well beyond the scope of this article. Moreover, because the 2257 regulations have so many complex parts specifically applicable to different types of adult content production and distribution, I for one believe that each adult business really should be individually counseled regarding their particular 2257 obligations by a qualified attorney.
Notwithstanding that view, however, I think it is important, to try to at least communicate the very real danger that the 2257 regulations are potentially an anti-porn weapon of mass destruction that could be used with devastating effectiveness against adult entertainment companies by a DOJ directed by a culturally conservative president. Given the economic and political realities influencing the next presidential election, I am afraid that simple prudence now requires adult entertainment companies to confront the very real possibility that a republican victory in 2012 might usher in a prosecutorial environment for the business of porn unlike any the industry has seen in the past. Here’s why.
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. During the Obama administration these politically influential groups have become desperate to somehow prove that intolerance for obscenity is still a vital part of the American culture.
Fortunately, mainstream adult content has become exceedingly difficult for the government 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 favorable court rulings like the one I obtained in the 9th U.S. Circuit Court of Appeals that requires the government to use a more difficult national community standard to evaluate explicit adult content in obscenity cases, makes it clear to government prosecutors that successful mainstream obscenity prosecutions are becoming increasingly difficult and improbable.
Regardless of how hard it has become for government prosecutors to successfully prosecute mainstream adult content, however, as long as the 2257 regulations are alive and well, there will still be a potent mainstream obscenity prosecution potential. Huh? Let me explain.
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 potential 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 five or even ten 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 relatively difficult obscenity counts with less problematic 2257 counts. In this way, a zealous, anti-porn directed DOJ could use 2257 violation paired obscenity prosecutions as a much quicker and more efficient means of forcing a large number of adult entertainment companies out of the business than via long, difficult, and problematic obscenity prosecutions.
This strategy, which was used initially in the recent obscenity/2257 prosecution of Ira Issacs in Los Angeles, requires that the government charge an adult entertainment defendant with one or more obscenity violations, even though the prosecutors know that the case will be relatively difficult to prove.
At the same time, however, the government also charges the defendant with one or more 2257 violations. Given the cut and dry nature of 2257 regulation violations, i.e., a party is either in compliance or not, and given the difficulty of full compliance with all of the numerous technical requirements of the 2257 regulations, the 2257 counts provide the government with powerful prosecutorial leverage over the defendant.
This is because the 2257 violations, like the obscenity violations, carry potentially multi-year jail terms and 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.
I believe that the adult entertainment industry should take notice of this possibility, particularly since it could provide a motivated anti-porn president with an efficient business-like means of crippling a huge segment of the American adult entertainment industry.
What should also be of great concern for adult entertainment businesses in the U.S. is the fact that a widespread anti-porn enforcement program under a Romney or Perry administration will likely be “sold” as a self-financing, and even revenue generating, endeavor for the federal government because of the forfeiture provisions of the obscenity laws and the substantial monetary penalty provisions available to prosecutors under both regulations, as was done under Reagan and Bush 41.
Given the extreme antispending and anti-porn positions required of every GOP presidential candidate these days, a program that prosecutes pornographers and takes their money to prosecute more pornographers, all at a net profit for the government, has got to be your average Tea Party member’s wet dream. And this kind of morality police would likely be particularly attractive to the anti-porn zealot and unquestionably successful businessman Morman Mitt.
Should Republicans take control of the White House, there will almost certainly be regulatory changes pertaining to the industry. As in the past, FSC and the industry attorneys can be expected to do their best to keep adult entertainment business informed through these resources.
I hope this series has been useful and informative and will in some way help to bring greater industry awareness of the very important, if not crucial, issue of “what if” Obama is defeated in 2012.
Gregory A. Piccionelli is an adult entertainment attorney and a longtime member of the First Amendment Lawyers Association. He can be reached at Piccionelli & Sarno at (818) 201-3955 or firstname.lastname@example.org.