On the surface, it would seem that flasher videos — including titles such as “Sugar Bowl Boobies,” “Fabulous Flashers: Caught in the Act/Naked in America” and the “Girls Gone Wild” series — would be exempt from the new regulations, as long as they do not contain any genital or anal stimulation or actual sexual penetration.
But First Amendment attorney Jeffrey J. Douglas told XBiz that there are several considerations that could put makers of these videos at risk.
Is Hardcore Involved?
The first consideration is whether a company has added hardcore content to its DVD, a common practice used to boost sales.
“Mere toplessness or stimulation of breasts isn’t covered [by 2257],” Douglas told XBiz. “But most flasher videos also contain hardcore scenes, and that means 2257 applies [to all content on the DVD].”
To comply, makers of such videos would either have to backtrack and get documentation on every women flashing for Mardi Gras beads and every wet T-shirt contestant, or edit out all hardcore content from their products.
Either choice could have a significant bottom-line impact on the companies affected.
U.S. vs. Knox
Another consideration is whether the Justice Department chooses to pursue the makers of flasher DVDs on child pornography charges based on a 1994 U.S. 3rd Circuit Court of Appeals ruling in U.S. vs. Knox.
In that case, the court ruled that language in the Protection of Children Against Sexual Exploitation Act prohibiting the “lascivious exhibition of the genitals or pubic area” could include footage of sexually suggestive bikini shots.
In other words, topless women dancing suggestively in bikini bottoms could, according to the Knox ruling, be considered pornography and be subject to 2257 compliance.
But Douglas said it is highly unlikely that Justice will use such a reading of the decision.
One protection flasher-video producers can fall back on — and already have in several private lawsuits unrelated to 2257 — is the newsworthiness of the events where they film.
“If they [filmmakers] go to drunken college events and take footage, there is no record-keeping obligation” falls under the newsworthy exemption, Douglas told XBiz.
Douglas points to an example first put forth by fellow First Amendment attorney Allan B. Gelbard.
If you were walking down the street, he said, and you saw Monica Lewinski orally servicing, say, President Bush in public, you could film the act without the need for 2257 documentation because it would be considered newsworthy.
“Unless the courts are ready to say that isn’t newsworthy, they also have to consider these drunken college events to be newsworthy,” Douglas said.
For now, then, it seems that producers of flasher videos will get a free pass on 2257, as long as they steer clear of hardcore content.