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Bush: What Adult Can Expect

Gregory A. Piccionelli
Needless to say, there is great concern and apprehension among webmasters and others about what another four years of the Bush Administration might mean for the adult entertainment business. While no one can predict with certainty what Bush II will bring, I believe that last November's "values driven" re-election of the president and a rising chorus by some to label adult entertainment as hazardous are both troubling signs of things to come. In my opinion, they represent trends that make the likelihood of numerous mainstream obscenity prosecutions less probable, while dramatically increasing the possibility of widespread 2257 prosecutions. Here's why:

Issue Of 'Values Voters'
Exit polling indicated that nearly a quarter of all voters cited "values issues" or "moral issues" as the primary motivating force behind their vote in the presidential election. The "values" issue trumped all others, including the war in Iraq, terrorism and the economy. Since a great many Americans still view adult entertainment as either immoral or at least not embodying traditional American values, the election polling data should be a wake up call for the industry.

We should take note, in part, because it is likely that both parties will now try hard to demonstrate to "values voters" that they can best protect "core family values." This, in turn, might result in increased governmental hostility toward the adult entertainment industry in the form of more restrictive legislation and increased criminal prosecutions in Bush II. This is clearly the desire of conservative groups. For example, commenting on the election and the nomination of Alberto Gonzales to replace John Ashcroft, Tony Perkins, president of the Family Research Council, an influential conservative lobbying group, said that his organization "hopes to see increased attention to the issues that were on the minds of values voters when they stormed to the polls — marriage, abortion and pornography."

Increase In Attacks Under Bush II
In Bush II, both parties may also find common ground attacking the adult entertainment industry by embracing claims that erotic materials are somehow psychologically, emotionally or even physiologically unhealthful, both to the persons viewing erotica and to persons performing in it. There are already alarming indications that this trend is rapidly emerging. For example, in mid-November, a Senate committee chaired by conservative Republican Sen. Sam Browback held public hearings about the "health risks" of pornography and "porn addiction." In the hearings, the Senate Commerce subcommittee on science heard from a number of researchers who compared erotica's effects on the brain to addiction to heroin or crack cocaine. One witness, James B. Weaver, a Virginia Tech professor, pointed to studies that he claimed showed that a prolonged use of pornography leads to "sexual callousness, the erosion of family values and diminished sexual satisfaction." Despite the huge federal deficit, it is likely that Congress will appropriate research funding to examine the allegedly "harmful effects" of erotic entertainment.

Another indication of increasing governmental focus upon health issues associated with adult entertainment can be seen in the actions taken by Cal/OSHA earlier this year when the California agency fined two adult film companies $30,560 each for allegedly allowing actors to perform unprotected sex. The action was the first time the state agency has taken regulatory action against the adult film industry.

If the trend to link health hazards to adult entertainment continues, I am concerned that moderate, and even liberal Democrats may be tempted to subordinate their traditional desire to protect the expressive rights of the adult entertainment industry to a desire to appeal to values voters.

Claims of health risks associated with consumption of erotica could provide them with a "politically correct" way to join their conservative counterparts to pass stricter anti-porn legislation without reference to any religious or moral arguments. This could make strange bedfellows of Christian conservatives and liberal Democrats in their opposition to adult entertainment.

Obscenity Prosecutions
To the surprise of many, the Department of Justice has commenced only a handful of obscenity prosecutions under the leadership of John Ashcroft, a zealously anti-porn religious conservative. In my opinion, if there are going to be a large number of prosecutions in Bush II, they will have to complement a program furthering Karl Rove's now proven strategy of courting centrist "value voters," rather than simply further the Christian conservative agenda. Because of this, and because most centrist voters are not generally in favor of abolishing all pornography, as are most Christian conservatives, at present, I believe we will probably see a continuation of the government's targeting of extreme or fringe materials, such as depictions involving excrement or violence.

However, if the administration determines that "values voters" will respond favorably to a broader governmental crackdown designed to "clean up the Internet," and if to do so would be perceived as protective of children, widespread prosecutions might well happen. If so, I predict, there will be more than just obscenity prosecutions. There is another weapon in the government's antiporn arsenal, a WMD for the adult business: 18 U.S.C. 2257.

The Government'S WMD: '2257'
The regulations set forth at 18 U.S.C. Sect. 2257 and 28 CFR Part 75, better known as "2257," comprise the so-called federal record keeping and labeling regulations. There are few laws of greater importance to adult entertainment companies. The requirements are complex, and even simple violations can result in a federal prison sentence of up to five years for the first offense. Moreover, the government has recently proposed additional obligations under 2257 that would make compliance with the law difficult, if not economically impossible, for adult content producers, providers and website operators. (Note: If you create or distribute hardcore content and you are not familiar with the requirements of 2257, you should immediately consult a competent adult entertainment attorney.)

Robust enforcement of the current or proposed 2257 regulations in Bush's second term could be devastating to the industry. This is because prosecutions of violations of 2257, unlike obscenity prosecutions, are relatively straightforward and relatively inexpensive in terms of governmental resources. For example, obscenity prosecutions require a jury to apply a complex and partially subjective three-part test to determine whether the subject materials violate their community's standards.

In contrast, prosecutions for violations of 2257 essentially only involve black-and-white issues, such as whether the accused has or has not complied with 2257's numerous requirements.

For example, one of 2257's requirements is the placement of a notice setting forth certain required information regarding, among other things, the name of a custodian of records and the address at which certain mandatory records are kept. A simple error, such as the use of a company name instead of a person's name, could constitute a violation of the statute, punishable by up to five years in federal prison. Yes, that's right. The first violation, no matter how minor, is a federal felony, carrying a maximum five-year sentence.

This could make 2257 the weapon of choice for any administration desiring to eliminate a large number of adult entertainment businesses. If a politically meaningful diminution of the size of the online adult entertainment industry is the administration's objective, in my opinion, there is simply no enforcement strategy that can effectively accomplish that goal, unless it includes widespread enforcement of 2257.

Fortunately, many parts of 2257 and the proposed modifications are challengeable on constitutional grounds. Such a challenge is currently planned by the Free Speech Coalition if it obtains sufficient funding to do so. If you are in the adult entertainment business, particularly one of the Internet-related segments, I strongly urge you to contribute to the special 2257 litigation fund that the FSC has set up. Please contact the FSC at (866) FSC-9373, or my office at the number below for further details.

If you own or operate an adult entertainment business, your livelihood, and perhaps even your freedom, are on the line if 2257 is not enjoined. This is an industry-wide battle involving the interests of producers, distributors, processors and all who depend on them. We are all in this together. Or as Benjamin Franklin said as British forces approached Philadelphia, "Gentlemen, if we do not hang together in this time of crisis, be assured that we will all hang separately."

Gregory A. Piccionelli is a member of Piccionelli & Sarno, one of the world's most experienced Internet and adult entertainment law firms. He can be reached at (310) 553-3375 or at www.piccionellisarno.com.

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