House Passes 2257-Related Bill

Gretchen Gallen
WASHINGTON – The U.S. House of Representatives passed a bill today that includes an embedded provision that revises and strengthens 2257 record-keeping law and makes it an even more formidable task for adult website operators to remain in compliance.

HR 4472, considered an “omniscient” bill, targets sex offenders and street gangs, among many other things. But buried within a lengthy index of terms is Title 6, which builds on a bill introduced in September by Rep. Mike Pence, R-Ind. strengthening the recently amended U.S.C. 18 § 2257 requirements by adding requirements for record keepers and authorizing civil and criminal asset forfeiture in child exploitation and obscenity cases.

Industry attorney Jeff Douglas told XBiz that the bill is a substantial reenactment of 2257, and in its current form would redefine the term “producer” to include what is now categorized as “secondary producer,” effectively undoing the 10th Circuit’s 1998 decision in Sundance Associates vs. Reno. The Sundance opinion effectively determined the deliniation between producers and secondary producers and how those two parties are required to maintain records on content talent.

The bill was passed under a suspension of House rules, so no debate or discussions were allowed, Douglas said, further signaling a possible agenda on the part of lawmakers to rush it through to the Oval Office as quickly as possible.

“According to a House Republican, they have gotten a guarantee that the Senate also will take it up in an expedited fashion, and this suggests they don’t intend to hold any hearings,” Douglas said, adding that there has never been a congressional hearing on 2257 law since it was enacted in 1988.

“Whatever benefit they get from overturning Sundance, they are creating many new constitutional problems for themselves by these extraordinarily expansive sets of definitions,” Douglas said. “Through our lobbyist, we will continue to try speaking on behalf of the FSC to encourage them [lawmakers] to learn something about what they are legislating, since they have operated entirely in ignorance since they enacted 2257 in the first place.”

Additionally, the terms of the bill cover acts of simulated sex – which current 2257 law does not – as well as the current definition of actual sex, which means that it would cover most R-rated films and a substantial fraction of PG-rated films.

Tom Hymes, communications director for the Free Speech Coalition, called the House's approval of the bill “infuriating,” and said that while it builds a strong case for going after child pornographers, in no way does its language make a connection to the adult industry.

“There are things in there that are really, really bad,” Hymes told XBiz. “It takes 2257 from bad to worse.”

The Motion Picture Association of America and various other screen guilds have not yet responded to the House's passing of the bill.

“One would think that if Hollywood has to comply with the burdens of 2257, then the economic impact will substantially outstrip the substantial impact it will have on adult businesses,” Douglas said. “If they don’t get aggressively involved, they will be doing a severe disservice to their membership and to the entire Hollywood community.”

The bill is now being fast-tracked through the Senate and if signed by President Bush, it could potentially become law by September.

Douglas said that if it makes it that far, the FSC will either be forced to file a new lawsuit against the Justice Department or amend the current lawsuit to encompass this new piece of legislation. However, it does not affect the current status of the appeal of the preliminary injunction because the new law will only affect content created on or after the effective date it is passed.

Hymes added that he fully expects 4472 to become law. “And when it does, we will have to challenge it,” he said.