While the bulk of H.R. 4472 takes aim at protecting children from pedophiles and predators, a small portion of the proposed law has the Free Speech Coalition concerned.
“The FSC lauds the efforts of Congress to pass legislation that prevents predators from harming children,” Free Speech Coalition Communications Director Tom Hymes told XBIZ. “Unfortunately, they’ve added Title 5, which is disturbing because it equates our constitutionally protected industry with child predators and child pornographers.”
According to FSC attorney Jeffrey Douglas, the goal of certain aspects of the bill is to undo ground gained in the Sundance Associates Inc. vs. Reno case, which blocked the Department of Justice from enforcing secondary producer liability for 2257.
“The changes in this law would effectively mean that secondary producers would be within the scope of the 2257 law,” Douglas told XBIZ. “As for our current 2257 litigation, the court order protecting FSC members still stands, and regardless of the change in the law, the government would have to go to court and modify that court order before enforcing 2257.”
While Douglas said that it was too early to tell how the courts would react to the proposed law, he did point out that adult website operators may soon find themselves having to comply with 2257 as secondary producers. He also added that the law requires record-keeping text on each page of a website.
In addition to expanding liability to secondary producers, the proposed law also mandates record-keeping for films and images containing depictions of “lascivious exhibition of the genitals or pubic area of any person.”
According to Douglas, that means that exhibitions of mere nudity could fall under the 2257 record-keeping regime.
“There is no definition of mere nudity or lascivious exhibition of genitals, which means we can only guess at the parameters of what material falls under the scope of the law,” Douglas said. “Also, the record-keeping provisions, which presumably would apply to mainstream Hollywood studios, are infinitely less burdensome.”
While Douglas was troubled by what he sees as an attempt to criminalize depictions of simulated sexual activity, he did see something of a silver lining for adult novelty manufactures and retailers who use images depicting genitals or mere nudity on their packaging.
“Under the law, images made before the effective date are exempt,” Douglas said. “So, a novelty company could use an image made before the effective date and avoid a 2257 event.”
Douglas also noted that language in the bill modifies federal obscenity law, allowing prosecutors to prove their case by showing that a producer made obscene material and that the material was distributed through means of interstate commerce. Demonstrating the producer’s intent to distribute interstate would no longer be required according to Douglas.
Backers of the bill hope to have President Bush sign it July 27, the anniversary of the abduction of Adam Walsh, for whom the bill is named. Walsh, the son of “America’s Most Wanted” host John Walsh, was abducted from a Hollywood, Fla. department store in 1981 at age 6. His severed head was later found, however the rest of his remains are still missing. His killer is still at large.
Douglas stressed that until the bill is signed into law, it remains a “moving target” in terms of its precise application and meaning.
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