It was a time of industry cohesion and action like no other. The entire adult news media focused on 2257 issues, membership in the Free Speech Coalition grew tenfold, and an industry legal "dream team" was assembled to do battle against the government on behalf of the FSC, its members and the industry as a whole.
As a result, when the new regulations took effect, a federal lawsuit was filed in Colorado seeking to enjoin the regulations, including those that imposed 2257's onerous record-keeping requirements on webmasters who used content produced by others on their site, even though the webmasters did not originally hire or contract for the performances or ever have any contact with the talent that appeared in such content.
These so-called "secondary producer" requirements imposed by the DOJ were challenged, in part, by the FSC because they stood in clear contradiction to the language in the original 2257 statute passed by Congress.
Throughout the latter half of 2005, the industry braced itself for a catastrophic wave of enforcement if the legal team should fail in its efforts to enjoin the new regulations. Fortunately, however, in January of this year, an injunction was finally issued prohibiting the government from treating members of the FSC as "producers" under 28 CFR 75 and enforcing the record-keeping requirements against FSC members to the extent that their activities did not constitute the hiring, contracting for, managing or otherwise arranging for the participation of the performers depicted in the content.
It was a great victory, to be sure. But an important battle, and not the war, had been won. Unfortunately, soon after the announcement of the granting of the injunction, the industry, in typical adult industry form, quickly returned to business as usual, all but ignoring the greater gathering threat that loomed ahead.
From the beginning of our legal challenge to the DOJ's new 2257 regulations, the attorneys warned the industry that Congress could fix the problem of improperly promulgated "secondary producer" regulations by simply broadening 2257's specification of the types of activities that require creation and maintenance of 2257 records to include those regulations. We cautioned that essentially, to end-run our victory in Colorado, all Congress would have to do is amend 2257's definitions of the word "produces" to include the kinds of activities that are set forth in the improperly promulgated regulations by the DOJ. Unfortunately, at the behest of religious conservatives, in July, Congress did just that... and much more.
On July 26, with much media fanfare on the White House lawn, President Bush signed the Adam Walsh Child Protection and Safety Act of 2006 ("Walsh Act"). The Walsh Act addressed and obviated the unconstitutional action of the DOJ's broadening of the definition of producers that was at the heart of the FSC lawsuit by including, as a part of 18 U.S.C. § 2257 (h)'s definition of the word "produces," virtually all of the DOJ's "secondary producer" language.
But the new legislation didn't stop there. The "new and improved 2257" now applies to a new category of content in which there is merely "lascivious exhibition of the genitals or pubic area" (18 U.S.C. § 2256 (1)(A)(v). Additionally, upon the effective date of a new section, "2257A," the regulations will apply to yet another new category of depictions, i.e., depictions of simulated sexually explicit conduct.
The Walsh Act also amended the obscenity laws to now include, for the first time, a criminal prohibition against the creation of obscene matter. This outrageous expansion of obscenity law, which, if held to be constitutional, could potentially subject content producers to obscenity prosecutions years or even decades after the production of a work in jurisdictions with which they never had any contact.
While many of our firm's clients, particularly our larger clients and others in the industry, have moved swiftly to address the challenges posed by the new law, unlike last year, there is a distinct absence of industry-wide urgency to deal with the dramatically changed legal landscape facing the business. This, despite the fact that literally thousands of adult webmasters are potentially violating the new laws at a time when the long-anticipated 2257 record-keeping inspections have commenced.
In part two, we'll look at the land of the free, aesthetics, softcore problems and more.
Gregory A. Piccionelli, Esq. is one of the world's most experienced Internet and adult entertainment attorneys. He is also a member of the Free Speech Coalition Legal and Government Affairs Committee. He can be reached at Piccionelli & Sarno at (310) 553-3375 or www.piccionellisarno.com. Also, please visit www.doomsdaycurve.org.