A 2257 Update

Jeff Douglas
The Free Speech Coalition continues to wage its ongoing battle with the federal government over 18 U.S.C. § 2257 — the extraordinarily burdensome regulatory scheme that was finally initiated after 18 years of inactivity when the FBI began inspections in September. There have been ten inspections, and consistent with the regulations, the inspections have been conducted in a mannerly fashion — no confrontations, no arrests, just review of the records on pre-selected titles by a team of agents.

The results of these inspections are forwarded to the Child Exploitation and Obscenity Section of the Department of Justice for determination of whether to prosecute any discovered violations.

A significant problem occurred when the FBI began inspecting companies that were "secondary producers" — starting with Legend Video in October — which was a violation of U.S. District Court Judge Walker D. Miller's injunction in the case of FSC vs. Alberto Gonzales.

The Department of Justice has taken a very aggressive posture in response to the FSC litigation team's attempts to resolve the problem. The government is claiming that the mandatory 2257 label establishes that the entity listed on the label is a "primary producer." That position is inconsistent with the regulations promulgated by the Department of Justice. That is, the regulations called for secondary producers to identify themselves on the labels under many circumstances.

Prior to the issuance of the injunction against the enforcement of the amendments in late December 2005, a 2257 label provided no guidance as to whether the listed business was a primary or secondary producer of content.

As a prerequisite to seeking relief from U.S. District Court in Denver, rules of court direct the wronged party to try to resolve the problem through negotiations. Free Speech Coalition lawyers tried but were rebuffed by the Department of Justice lawyers. Now the FSC is going back to Judge Miller to get the problem solved and stop the federal government from continuing to break the law.

And that is where things get complicated. On July 27, amendments to 2257 and a new statute, 18 U.S.C. § 2257A, were signed into law. Typical of the manner in which the adult industry has been regulated, there were no hearings on the amendments or the new statute. The changes were grafted onto an omnibus anti-sex crime bill, HR 4427.

Significant Changes
But the 2257 amendments made several significant changes. The first to be discussed was an attempt to change the definition of "producer" to encompass the definition of "secondary" producer as defined in Department of Justice regulations.

The injunction had been granted in part on the grounds that the statute did not authorize record keeping by secondary producers — that is, the category of secondary producer was a creation of the Justice Department and unauthorized by law.

Even if these changes are constitutional — a doubtful proposition to be discussed below — the injunction still has validity and is enforceable. First, the government has not moved to modify the injunction. So, new law or no new law, the injunction is in place. Second, there is the significant question as to whether the new law can be constitutionally enforced retroactively.

Let us say that you have lawfully purchased content and, consistent with the law, have no records pursuant to 2257 because you are not a primary producer. Can the government lawfully bar you from distributing that content if the primary refuses to provide you with the records? If the government so claims, it would create enormous constitutional problems.

In brief, the government would be banning distribution of 1st Amendment-protected materials, lawfully created and lawfully purchased, without any claim that the materials are child pornography, even though the primary producer has records available for inspection.

Therefore, it is likely that the government will concede that those materials already legally owned by secondary producers prior to July 27 are not subject to inspection. If so, the change in the law, even if constitutional, will not change the need for enforcement of the injunction for pre-July 27 materials.

The question then arises: Are the changes constitutional? The handful of federal legislators who authored the amendments to 2257 have been relentlessly hostile to commercial eroticism. They hoped, among other things, to cancel out the victory scored by the FSC in the earlier injunction hearing. However, by acting out of malice, in utter ignorance of the industry and with contemptuous disregard of the Constitution, these radical activists created enormous problems for the Department of Justice, which may speed up the ultimate demise of 2257.

In addition to expanding the definition of producer, the amendments to 2257 expanded the definition of "actual sexually explicit conduct" to include "lascivious exhibition of the genitals." Congress also created a new law, 2257A, that purports to impose burdens similar to that of 2257 upon producers of "simulated sex." (These components do not go into effect until 90 days following the finalization of new Department of Justice-issued regulations.)

Aimed at the non-X-rated side of Hollywood, 2257A has an exception that just about swallows up the entire law. 2257A provides that a company that uses actual minors in simulated sex scenes (think "Taxi Driver," for example) merely must send a letter to the attorney general saying that ID is regularly checked and birthdates and addresses recorded (consistent with the I-9 requirements) and all record-keeping and labeling requirements are waived.

Compare Hollywood's obligation under 2257A with the adult industry's obligations under 2257. There has never been a documented occasion where an adult industry producer knowingly used a minor. In contrast, Hollywood is exempted despite its regular and consistent use of minors in simulated sex scenes. This irrational distribution of burden, favoring one form of speaker over another, based upon the content of the speech, creates a very difficult argument for the government.

That is, the new law and amendments establish a content-based distinction between two categories of protected speech, simulated and actual sexually explicit conduct. Content-based distinctions are judged by the highest possible standard; that is, the government must prove that the legislation adopts the least restrictive means to accomplish its goals.

Recordings of simulated conduct, including that involving minors, result in virtually no administrative burden (one letter to the attorney general), while recordings of actual sexually explicit conduct, which does not involve minors, requires an enormous burden of millions of documents being created, tracked and maintained by just one co-plaintiff alone.

Since the nominal purpose of the statute is to detect and deter child pornography, the government faces a very difficult constitutional argument. It must prove that the method provided for by Congress when minors are used is an inadequate method of tracking and deterring child pornography when minors are not being employed.

FSC's Goal
The FSC and its lawyers are looking forward to advancing these (and other) arguments. It is the organization's goal to have the entire law struck down as unconstitutional. Nothing short of that will be a true victory.

In addition, the Democrats' unexpected victory in the Senate likely will have positive consequences for the industry's battles with 2257. There really was only one constituency supporting 2257. It has not been the Department of Justice and certainly not the FBI. It has been the favorite child of a handful of religious extremist Republican lawmakers. In the minority, they cannot pressure the Bush administration to allocate more resources to 2257. This will make for much more reasonable regulation and perhaps, for the first time in American history, actual dialogue between the regulators and the regulated.

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