Commentary on 2257

Jim Pinkerton
Listening to the Justice Department's lawyers arguing their side of the 2257 case in Denver, I was reminded of the old joke about the man who lost the dollar bill on 3rd Street, but is looking for it on 4th Street. Why does he look on 4th Street? Because the light is better there! That might once have been a funny bit for a comic, but in real life, a persistently misdirected search is a sign of either stupidity or mental illness.

And so, too, the U.S. government's quest to seek out child pornography. Yes, child porn is a serious concern, but Uncle Sam's 2257 regulations concern child porn in name only. How so? Because the proposed rules are comprehensive — in fact, overly so — yet they still miss the mark entirely. The upshot is that they would indiscriminately regulate the performances of young and old alike.

As noted in the Free Speech Coalition's legal brief against 2257, "requiring 20-, 30-, 40-, 50-, and 60-year-old performers to divulge personal information and identification documents is not a narrowly tailored means of promoting a legitimate and compelling government interest in child protection." And "narrowly tailored" is the relevant term of legal art: those restrictions that are carelessly and broadly tailored and are not constitutional.

One such 60-something performer is David Cummings, born in 1940. He was on hand in Denver, observing the government's effort to regulate him, a senior citizen, in the name of protecting children. Cummings, a well-known adult actor/director/producer, showed me his driver's license, as well as his military ID card — he spent 26 years in the U.S. Army, including a stint in Vietnam.

Cummings, whose real name is Dave Connors, is in great shape, but trust me, the star of the two "Old Guys and Dolls" films is no spring chicken — he would never get carded in a bar. But if one were to imagine a 2257-like regimen applied to underage drinking, such rules would require everyone to be carded, regardless of obvious age, common sense be damned. And so Cummings would have to be ID'd, each and every time he stepped into a bar.

Not only would everyone's age have to be monitored — on every bit of smut in the country, literally without regard to what, or who, it depicts — but records of that monitoring would have to be maintained. To further pursue the liquor-establishment analogy, it would be as if each bar had to keep the paperwork (name, age and address) of each and every patron, each and every time he or she set foot in the joint.

Not only would such an alcohol-regulatory system be crushingly expensive, as well as a massive intrusion on privacy and personal freedom, but it also would, in its overkill onerousness, smother the police in gratuitous paperwork.

Here's an idea instead: The authorities should target child porn and go after it, wherever it is found. Nobody associated with the FSC — the adult entertainment trade group litigating against the excessive 2257 regulations here in Denver — would object to such energetic efforts, nor anybody else that I know in the adult entertainment industry.

Playing Andy Rooney
But unfortunately, that's not the way the government operates. To play Andy Rooney for a moment, I might ask: Have you ever noticed that the government says it's going to go after one thing, and then it goes after something else? For instance, the government says it wants to nab terrorists at airports, but the Transportation Security Administration ends up frisking old ladies instead. The government says it wants to stop Al Qaeda, and yet we invade Iraq while Osama Bin Laden hides out in some other country, seemingly untroubled. The government says it wants to stop gun crimes, so it jacks up regulations on middle-class gun owners, who are not about to knock over a 7-Eleven. Which is to say, watch what the government does, not what it says.

All this raises the question: why? Why does the government get things so wrong, particularly in issues related to adult entertainment? Why does the Bush administration, in particular, seem bent on conflating protected speech (adult-oriented sexual content) with criminal contraband (child porn) — especially when the over-regulation of the former gets in the way of the legitimate prosecution of the latter?

I can think of three possible explanations, which can be summed up in three acronyms: RIP, OCD and USDOM.

The first, RIP, is short, of course, for rest in peace — as in, the government wants to kill off the adult entertainment industry. It's easy enough to see that plenty of folks on the right, in and around the Bush administration, would love to simply cancel the First Amendment and put the adult biz out of biz.

But as noted, if this is the Justice Department's motivation, it's going about it in a self-defeating way, because the 2257 regulations will never pass constitutional muster.

Warning Labels
So we might turn to a second possible explanation: OCD, short for obsessive compulsive disorder. Maybe the government just can't help itself as it generates ever more forms and folderol. That's what bureaucrats do — they want to put a warning label on every paper clip, and then, for good measure, everything else, too. None of this activity serves any legitimate purpose, but that's the point about OCD: The thing being done has nothing to with anything. By this reckoning, 2257-type rulemaking satisfies the bureau-maniacal impulses of those who sit in marble office buildings, and nothing else.

Sound strange? Sure. But that doesn't mean it doesn't happen. Charles Dickens was onto a larger truth a century-and-a-half ago when he described an imaginary "Circumlocution Office" in his novel, "Little Dorrit":

"The Circumlocution Office was (as everybody knows without being told) the most important Department under Government. No public business of any kind could possibly be done at any time without the acquiescence of the Circumlocution Office. Its finger was in the largest public pie, and in the smallest public tart. It was equally impossible to do the plainest right and to undo the plainest wrong without the express authority of the Circumlocution Office... It was this spirit of national efficiency in the Circumlocution Office that had gradually led to its having something to do with everything."

But it's still possible that the government wants to do more than merely circumlocute. Maybe there's a method in Justice's seeming madness. Perhaps our governing authoritarians are trying to solve another kind of problem altogether; a problem that dare not speak its name. Suppose, just suppose, that in going for everything, in terms of regulation, they are going to get nothing, and they know it.

Following this line of thought, we might consider, with just a pinch of sympathy, the plight of a religious rightist who, amidst all his devout conformity, amidst all his Bibles and law books, discovers to his tortured delight that he actually likes porn. What to do? Fess up? Risk denunciation by friends and family? Maybe, but maybe not.

Maybe instead, our hypothetical G-Man (God or government, your choice) will devote his time to savoring porn by regulating it. That was an argument made most cogently by Michel Foucault in his "History of Sexuality," published in 1976. In proscribing pornography, one must at the same time be describing porn, and that's not much different than enjoying it, even wallowing in it.

So as one reads 18 U.S.C. § 2256, the prelude to 2257, one sees a loving description of all that the law says we must loathe. Describing "sexually explicit conduct," some government-appointed lawyer painstakingly stipulated what that could mean: "sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or masochistic abuse." Hot stuff, huh? Can't you just imagine all those lawyers and investigators, bound up in their Brooks Brothers suits, arriving late to their next Federalist Society meeting because they were too busy surfing the web looking at porn? And all the while getting paid by the government to do so?

Thus to the third acronym: USDOM — Uncle Sam is a dirty old man. And let me hasten to say, it's not Uncle Sam who is dirty, but rather those who presume to speak for him. America is a great country, in no small part because it produces men such as Cummings, who are willing to step up and fight bravely in its defense, even when others of his generation had "other priorities."

But this is not a perfect Union, in part because the government attracts book-burning, as well as Big Brother-ish zealots who seem to be working out their own Foucaultian issues by disciplining and punishing others for doing what they, themselves, seem twistedly obsessed with.

Just as patriotism is the last refuge of the scoundrel, so maybe fighting porn is the last refuge of the closeted smutster. That might be the real secret of the 2257-ers: In their strange zeal to command and control, they will so overreach that the whole legal enterprise will collapse, leaving no viable regulation of adult entertainment at all. And maybe that's what they really want, whether they realize it or not.

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