Land of the Free
The reason that the industry has not quite awakened to the urgent situation confronting it is somewhat of a mystery. Perhaps it is ambivalence resulting from years of lawyer warnings of doom and gloom that have not materialized. Given the amount of last year's attention to 2257 matters, perhaps it is simply 2257 overload or 2257 fatigue. Given the patent absurdity of 2257, including its potential for subjecting a person to a five-year prison term for merely failing to properly cross reference a file, perhaps the ambivalence is just incredulity that such an unfair law could even exist in "the land of the free" in the first place. Perhaps there's a sense that the attorneys will take care of it, pretty much as we always have. Perhaps it is all or none of the above.
Whatever is its source, it is my sincere hope that the industry's smaller players snap out of their 2257 indifference because 2257 is a dream weapon of mass destruction for government to take down a substantial chunk of the industry that would otherwise be difficult, if not effectively impossible, to prosecute successfully using the obscenity laws alone. Unlike obscenity prosecutions, which afford the accused many defenses rooted in 1st Amendment freedoms of expression (such as the requirement that material alleged to be obscene must lack serious literary, artistic, political or scientific value), violations of 2257 do not provide the same quantity or quality of free speech defenses. For example, whether the alleged material at issue in a 2257 prosecution has serious literary or political value is of very limited importance and provides virtually no effective defense to the alleged violation.
Additionally, given how easy it is to violate 2257's numerous and complex provisions, many industry attorneys, myself included, are concerned that prosecutors will seek to add a number of 2257 violation counts, punishable at five years apiece, to an obscenity prosecution in order to motivate a defendant to plead out an otherwise difficult obscenity case.
Consequently, I implore all adult entertainment business owners to do whatever is necessary to gain a working understanding of the 2257 regulations and their application to their business. Of course, if at all possible, you should also consult with a competent adult entertainment attorney to guide you through this process. This is advisable, in part, because the new regulations often impact adult businesses in a manner that is not readily discernible to the untrained.
For example, most webmasters are not aware of how the 2257 regulations now impact dramatically adult banner advertising, especially as banners have traditionally been used in affiliate marketing programs. Most reputable affiliate marketing programs have provided affiliates with softcore banners for years. These companies, often on advice of counsel, refrained from providing banners containing depictions of actual sexual conduct, because to do so would require the inclusion of a 2257 compliance statement. Since the revisions to the regulations in June, the compliance statement is required to be displayed in either the second-largest font in the work or 12-point type. Given the size of the typical banner ad, the regulations pose more than just an aesthetic problem. In most cases the compliance statement would take up most, if not all, of the banner ad.
But now, after the enactment of the Walsh Act's amendments to 2257, even softcore sex site banners with depictions of genitals or the pubic area are probably now within the ambit of material subject to 2257 regulations. This means the banner would have to contain a full 2257 compliance statement, which includes all the information required by 28 CFR 75.6 or 75.7, such as the name of the work, the location of the appurtenant records, the name of the custodian of records, the date of production, etc.
Yes, it is absurd, but there's more.
Additionally, today a webmaster who includes a sex site banner that depicts genitals or the pubic area on his or her website must now also create and maintain records pertaining to the banner because the expanded producer definition enacted by Congress in the Walsh Act has now made the webmaster a "producer" of the content in such banners.
(Note: The example above pertains to persons who are not members of the FSC subject to the injunction we obtained in FSC vs. Gonzales earlier this year. The ambiguities and complexities introduced by the new regulations with respect to persons subject to the injunction cannot adequately be addressed here. Please consult your attorney or the FSC regarding your specific situation.)
At this point you might be wondering about the broader topic of whether the industry is going to challenge the new provisions. It is very likely that FSC will once again pick up the gauntlet thrown down by religious conservatives in the latest round of their never-ending campaign to destroy the adult entertainment industry. But assuming so, just how and when that will be done is not an appropriate subject for public disclosure at the present time in a forum monitored by our opponents.
What can be disclosed, however, is that because of the aforementioned return to business as usual after the granting of the injunction in January, the rate of new memberships in, and donations to, the FSC has leveled off. This is an unfortunate turn of events, because the industry needs to support the FSC now more than ever. Consequently, if you haven't renewed your membership, please do so as soon as possible. If you haven't joined, what are you waiting for? If you need more motivation, you may want to discuss with your 2257 attorney the potential legal benefits of joining the FSC.
In time, it is my fervent hope that eventually the entire 2257 regime as it is currently configured will be judicially characterized for what it is and always has been: an adult industry-harassing, freedom-strangling exercise in brute governmental power by those motivated by sexual ignorance, fear and intolerance.
But until that day, everyone in this business must stay sharp, focused and not give in to 2257 fears or 2257 fatigue.
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.