“Why I do it” — An Erotic Documentarian’s Viewpoint

by Tony Comstock
Special Guest to the Legal Satyricon

In a world that seems awash in sexualized imagery, why is it that so little of this imagery speaks to the common pleasurable reality of sex? We’ve been producing the “Real People, Real Life, Real Sex” erotic documentary series for some time now, and I’ve heard the same kinds of questions dozens, perhaps even hundreds of times from people who know and love our work, from therapists and counselors, from people in pain about their sexuality, and from people enjoying their sexuality as part of full and wholesome lives. Over and over, I am asked, “Why are films like ours, films that depict sex in a way that is joyous and cinematic, almost nonexistent?” “Why are art films that contain explicit sex always so downbeat?” “Why does pornography look and feel so different from the other sorts of visual images we see?” “How does what we do — and do not — see in cinema affect our understanding of our own sexuality?”

I’d like to say the answer is that I have a special insight into the human sexual condition as it relates to cinema, but it’s a little more complicated than that. To truly understand why sex on film looks the way it does, one needs to look at the history of sexual imagery in cinema, the history of obscenity laws, and the business and technology of image making. Once you have that background, you can explore how cinematic images actually work, and how that relates to cinematic depictions of sexuality. I have spent many years investigating that background, and the more I learn, the more I am driven to make the films that we produce.

I have been a photographer my entire adult life. I believe passionately in the power of the moving image to help us understand who we are as human beings. I’ve documented unspeakable suffering, violence, and death. For that, I’ve been called a courageous witness.

In bearing witness to sex, I sometimes get called other, less charitable names. Sometimes this hurts my feelings. Sometimes it makes me feel like quitting.

I bear witness to the sex act because I believe that depictions of truly joyous and wholesome sex — depictions that represent the overwhelmingly positive and important role that our sexuality plays in our humanity — are all but absent from the cinematic landscape. Moreover, in an age where it is easier than ever to see sexually explicit imagery, it is harder than ever to find imagery that reflects the common reality of sex: that sex is nice; that sex is normal; that sex is good.

I’d like to share a comment left on my blog about three years ago. As you might imagine, doing this work and demanding that it be taken seriously can sometimes be a struggle. But when I despair, I go back and read this:

I have issues with sex. I’m a sexual abuse survivor. Anyone who’s been sexually abused comes into sexuality with a handbag and two trunks of emotional baggage.

When we were trying to conceive there was a blatant point to having sex: having a baby. That made it okay. After all, society couldn’t look down it’s nose at a married couple — young, still facing fertility problems, trying to have a child.

And then when the child is born, you get the excuse of body recuperation. And if your child is sick, you get a bonus 6 month reprieve. However, there does come a point where sexuality, motherhood, couplehood, and life clash. I’m tired. Sex requires energy. So does doing the dishes. But sex requires an emotional investment, something I’m not ready to make, something I feel inferior making. So the dishes it is. And laundry for good character.

I feel conflicted by sexual imagery. I sometimes like what I see. I sometimes like it a lot. But sometimes it scares me. I’m not pretty like Eva Longoria. I’m not thin or have shiny hair. I don’t have nice breasts. Mine are saggy and droopy and currently nourish the body of a very rotund 9 month old. They serve a purpose, and purposeful breasts aren’t sexy — to me anyway. And besides, they don’t LOOK like the breasts I see on TV. Perfect, sculpted breasts. Breasts that boys like. And bodies. Don’t get me started on the bodies.

What we see isn’t real. It’s said over and over. I know there are 50 people off-set creating the magic. What they’re feeling isn’t real. What they’re doing isn’t real. And it makes me wonder if what I’m doing is okay. Emotionally un-investing myself in my relationship. Because really, I can’t ask family about sex. I can’t ring my mother-in-law up and ask her if she ever felt this way when looking at her naked body. Or ask her if she felt hung up on emotional issues when her husband’s hand touched her bottom.

Abuse survivors bring guilt into the game as well. Not only do we have more bodily hang-ups, failed relationships and mental problems, but we have guilt about sexuality. About wanting sex. About feeling GOOD about sex.

Today though, something struck me in just in the right spot. I had one of Oprah’s famed “a-ha” moments. A link took me to www.comstockfilms.com. Dubbed: “Real People, Real Life, Real Sex” the site explores sexuality for real. In a documentary style, we meet and enjoy the couple and then venture into the velvety movement of their bodies.

I must say. I was stunned. I’m not a fan of porn. I am disgusted by a lot of what is sold to men. The fairytale behind that isn’t charming, in my opinion. But watching these clips I thought, wow. Oh my goodness. So THIS is sex. For real. And I loved the charming banter of the couples. I feel grown up right now. Like a real adult. I’ve confronted one of my demons — enjoying a sexual experience — and I can actively admit that I enjoyed it. Which is probably a lot more information that you’ve wanted to hear from the mother of a child who doesn’t do a lot of sleeping. If you’ve got the time and the inclination I encourage you to take a step into the realm of Comstock films. It’s the first step I’ve taken to embracing that humans are allowed to be sexual beings. – Jen P.

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Award-winning filmmaker Tony Comstock frequently lectures on the legal and business realities that shape and too often warp the sexual imagery we see. Drawing on examples from Hollywood’s history of self-censorship, landmark obscenity cases, and the collision of technology and image-making, Comstock offers an expanded framework for understanding of how what we do and do not see in cinema effects our understanding of our own sexuality.

Another Strip Club Sued for Age Discrimination

By Jess Christensen, Employment Law Correspondent

A while ago, I wrote about Kimberlee Ouwroulis and Barbara Sanders, both Canadian exotic dancers in their mid-40s who sued the club that fired them for being too old. Now the can you be too old to work at a strip club? debate comes to America.

The EEOC has filed a lawsuit against Houston’s Cover Girls club on behalf of former waitress Mary Bassi, alleging that the club engaged in age discrimination when it fired her in 2006. At the time of her termination, Bassi was 56 years old, and had worked for the club since 1993. According to reports (the complaint itself does not appear to be available online), club managers called Bassi “old” and teased her about entering into menopause and showing signs of Alzheimer’s disease. According to the EEOC attorney handling the case, Bassi had been a high earner until the club started to assign prime shifts to younger waitresses. Attorneys for the club have so far declined to comment on the case. Bassi now works as a waitress for a competitor club—though, competition isn’t stiff (heh), since Cover Girls burnt down in 2007 and hasn’t yet been rebuilt.

Tempest Storm and Bette Paige

As talked about in my earlier post, an employee’s age cannot be considered as a factor in any employment decision, unless age is a Bona Fide Occupational Qualification (BFOQ)—i.e., that age is relevant to the essential functions of the job. While strip club employers will undoubtedly argue that age relates to beauty, and beauty is certainly an essential qualification for adult entertainment establishments such as strip clubs, they might do well to consider the case of Tempest

Who says 81 isn't hot?

Storm, who at age 81, is still a crowd pleaser. Although Storm has semi-retired after more than 50 years as a stripper and burlesque dancer, she still makes headliner appearances at such legendary venues as San Francisco’s O’Farrell Brothers Theater and performs frequently in Las Vegas, stripping down to a sheer bra and G-string in front of cheering, packed houses.

And now for a little Friday afternoon entertainment…

Slick Glass Dildos are an “Obvious” Improvement!

The slicker the better

Ah, a dildo patent case. Just what the doctor ordered. A dildo patent case written by Posner? Now there’s something that makes a great capstone to a blogging week.

In Ritchie v. Vast Resources, __ F.3d __ (Fed. Cir. 2009) Judge Richard Posner was sitting by designation at the Federal Circuit. And Posner being Posner writes:

The plaintiffs’ patent (U.S. Patent No. Re 38,924, the 2005 reissue of No. 6,132,366, filed on April 1, 1999) claims a “sexual aid…fabricated of a generally lubricious glass-based material containing an appreciable amount of an oxide of boron to render it lubricious and resistant to heat, chemicals, electricity and bacterial absorptions.” Glass that contains boron oxide is called “borosilicate glass.” The “silicate” is a reference to the fact that like most glass, the predominant component of borosilicate glass is silica. By “lubricious”—a word whose primary meaning, appropriate for a sexual device, is “lecherous”—the patent means only “slippery,” which is the secondary meaning of the word. The patent’s use of the word in that sense is confusing, because glass is smooth rather than slippery. But what is meant is that the glass, because it contains oxide of boron, is smoother than soda-lime glass and therefore becomes slippery with less lubricant than a device made out of soda-lime glass. The patent’s use of the term “appreciable amount” of oxide of boron is also troublesome, because it is vague. But apparently all that is meant is that the plaintiffs are claiming that their invention uses glass that has the amount of boron oxide usually found in borosilicate glass. (Op. at 2-3)

The fact that nobody made a dildo out of borosilicate glass before does provide some support for the fact that this was a patentable and non-obvious invention. However, it isn’t enough. Posner makes a few fun analogies, but his best is when he reaches back into the nineteenth century:

And if more is required to make our point, there is the venerable case of Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1851), cited approvingly in KSR Int’l Co. v. Teleflex Inc., supra, 550 U.S. at 406, 415, which denied patentability to an invention consisting of the substitution of a clay or porcelain knob for a metallic or wood knob in a doorknob (the doorknob itself, as distinct from the knob on the end of it, being an assemblage of knob, shank, and spindle). (Op. at 6)

Heh heh… “wood”… heh heh… heh… “knob”.

It Doesn’t Get Much Lower Than This – “Susan Boyle Does a Porno?”

Representing adult entertainment industry clients makes my cocktail party discussions somewhat interesting (to say the least). Often, I get asked “okay, but where do you personally draw the line?” I have always said that I’ll know it when I see it.

I have now seen it.

An adult entertainment company has registered susanboylexxx.com and has placed an offer on that site to pay Susan Boyle $1 million if she will lose her virginity on camera. Aside from the fact that this has to be one of the most douchebaggy things I’ve ever seen, the company that registered that website is certainly violating 15 U.S.C. § 1129 and probably violating 15 U.S.C. § 1125(d).

If Susan Boyle wants to simply collect $100,000 plus attorneys fees, she ought to sue them instead of taking them up on her offer.

Short Url: http://bit.ly/CWKgS

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Vero Beach, Flori-duh Moves to Ban Adult Entertainment

Vero Beach, Home of the Beach Burkha

Vero Beach, Flori-duh is moving to ban jello wrestling, mud wrestling, and any unauthorized display of the buttocks — which it defines as follows:

“For purposes of this section, the term ‘buttocks’ shall mean the area at the rear of the body which lies between two imaginary lines running parallel to the ground when a person is standing, the first or top such line drawn at the top of the nates (i.e. the prominence of the muscles running from the back of the hip to the back of the leg) and the second or bottom line drawn at the at the lowest visible of this cleavage or the lowest point of the curvature of the fleshy protuberance, whichever is lower, and between two imaginary lines on each side of the body, which lines are perpendicular to the ground and to the horizontal lines described above, and …”

In other words, ladies, you better get rid of those swimsuits. (source)

Elder and Disabled Porn Targeted By Massachusetts Lawmaker – Proposal Goes Too Far

Banned in Boston (and all of Massachusetts) if Kathi-Anne Reinstein gets her way.

Massachusetts State Rep, Kathi-Anne Reinstein (D) is targeting adult entertainment involving models over the age of 60 as well as private sexual communications between the elderly (if you can call 60 “elderly” anymore) and private sexual communications among the disabled. See State Puts Porn Pervs in Sights, Boston Herald. The measure misses the mark and as it is an affront to the dignity of the elderly and the disabled alike with a heaping helping of unconstitutionality to round out the bad legislation buffet.

The proposed legislation reads:

Whoever, either with knowledge that a person is a child under eighteen years of age, an elder or a person with a disability, or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, an elder or a person with a disability and with lascivious intent, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child, elder or person with a disability to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.

Mass law defines an “elder” as anyone over the age of 60 (that includes Sylvester Stallone) and a “person with a disability as “a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection.”

There are nightmare scenarios where people, due to mental infirmity, might not be able to give truly informed consent — and in those cases, I too would support measures to punish those who might exploit them. Illinois, for example, reportedly prohibits porn production involving the “severely mentally retarded.” Set aside the fact that we don’t call the mentally disabled “retarded” anymore, and such a law makes perfect sense. I am sure that, more likely than not, someone in such condition would lack the mental capacity to give their consent – and thus we should be jealously protective of their dignity and personal autonomy. C.f. New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography depicting actual children is not protected speech).

But, Reinstein’s law goes way too far.

Believe it or not, there is a market for “elder porn,” as well as “disability porn,” and those markets are served by consenting, healthy, elderly and disabled models. Naturally, some of this market caters to fetishists, but before you start saying “ewwww,” consider that there also happen to be many healthy members of society who don’t believe that sexual desirability ends at 60, nor at any other age, and it’s not just big in Japan. Just as “elderly,” is not necessarily inconsistent with “sexy,” (Sofia Loren and Sylvester Stallone are both over 60) neither is “physically disabled” necessarily inconsistent with “sexiness.” Just ask this wheelchair-bound porn actress.

One of the most utopian things about the internet is that anyone, and I mean anyone, can (no matter what they look like) find a porn site that features models that look just like them. Madison Avenue is gives 17 year old girls deep seated anxiety about their weight to the point that they kill themselves with anorexia and bulimia, because they don’t look like airbrushed and photoshopped lingerie models. On the other hand, any woman who thinks that nobody would find her attractive could get over that with 10 minutes of porn surfing. Sure, you can find airbrushed and surgery-enhanced models in porn, but the “natural” look is just as prevalent these days. If there is one thing I’ve learned for from representing adult entertainment clients it is that nobody should ever feel unattractive, because there isn’t just someone for everybody out there. Oh no, its much better than that — no matter what you look like, you are so central to the desires of a large enough group of people that you, (again, no matter what you look like) can easily make $200,000 a year selling nude photos of yourself on the internet. All you need is a thimbleful of business savvy and the right adult entertainment lawyer.

Yes, the state of internet porn is proof that we really are all beautiful. Sniff.

But don’t tell that to Rep. Reinstein. Her constitutionally-sloppy legislation doesn’t simply target exploitation of the vulnerable. It targets my parents who are, by any measure, still pretty damn good looking — even if they are both over 60. Dare I say that my mother is still knockout gorgeous, and strangers still oogle her. I’m proud to say that she and my dad certainly still do it. But you know what? My mom does have a bit of a disability (as defined by Massachusetts law). She has a lung condition that is a “long-term physical … impairment that prevents or restricts the [her] ability to provide for … her own care or protection.” Uh oh.

I’m not lamenting the fact that this legislation might prevent my mom and dad from becoming the next internet porn sensation. I do think that I would need to gouge my eyes out with a fork if that ever happened.

But, Reinstein’s law is not limited to commercial porn. In fact, it doesn’t have to be porn at all – since I’d venture to guess that the elderly women who posed nude for this calendar don’t consider it to be “pornographic” or “perverted.”

The worst part is that Rep. Reinstein’s law equates nude photos of the elderly or disabled with child pornography: You can’t make it for any reason whatsoever, not even for private enjoyment, no exceptions, no nothing. Under this law, If my mom and dad want to set up the ol’ video camera in their bedroom and make some in-home entertainment, they would be looking at 10 to 20 years in prison. Scroll back up and read the text of the law — there is no exception for personal use, no exception for someone who is clearly mentally capable of making a decision for themselves, no an exception for someone who truly wants to appear in a state of undress for a lascivious purpose.

Over 60? Check. Need help taking care of yourself? Check. Dumb law? Check.

Lets not go getting silly by thinking that we can simply trust Massachusetts’ finest to enforce the law with a degree of common sense. The child porn laws, nationwide, are being used in a manner for which they were never intended by placing kids on the registered sex offender lists for “sexting” photos to each other. In Massachusetts, consenting adults have been arrested for spanking one another — with the police interpreting that as criminal battery. Genarlow Wilson, a 17 year old male got a blowjob from a 15 year old classmate at a party, and not only was he arrested, but a peckerwood prosecutor from Georgia fought tooth and nail to try and make sure that he served every day of his ten year sentence for “child molestation.”

When it comes to dumb sex laws, the last person I’m going to trust to apply it intelligently is a law enforcement officer or a prosecutor. Not even in my beloved Commonwealth. Even noble and intelligent legislation becomes an unpredictable monster in the hands of fools who refuse to think while enforcing it. When a law is an obvious Constitutional quagmire as soon as the legislator’s pen hits the paper, it doesn’t take a clairvoyant to see that it will produce nightmarish results.

I’m certain that Rep. Reinstein meant well. I’m also sure that it never occurred to her that there just might be a healthy reason for the elderly and the disabled to appear in racy photographs. To be fair to her, I’m sure that she isn’t regularly exposed to the panoply of sexual expression that runs across my desk every day. Nevertheless, her legislation must be smothered, lest it be added to the patchwork of nonsensical laws that, taken alone might not mean much, but taken together they act as black coal dust in the atmosphere of freedom.

The “elderly” and the disabled have a right to express their personal sexuality, and those who may want to view such materials have a right to receive them. The purported legislative intent of this law, protecting the vulnerable, could easily be accomplished by using the existing laws. Or, if Rep. Reinstein insists on sponsoring a new bill, it could be drafted far more narrowly and intelligently, and without trampling anyone’s personal liberties.

H/T: Volokh

Pole Dancing is Art, Tax Exempt

Quagmire enjoys one of the many fruits of the Revolution.

A New York administrative law judge ruled that N.Y. sales tax does not apply to cover charges at an Albany strip club First Amendment protected erotic expression venue known as “Nite Moves.”

The cover charges are taxed under New York State Tax Law §1105(f)(1), unless the performances taking place at the adult entertainment establishment qualify as “musical arts performances.”

To support its theory that these performances qualified for the tax exemption, Nite Moves introduced the expert testimony of Dr. Judith Hanna. Dr. Hanna probably knows more about exotic dance than any other person on Earth — even more than Glenn Quagmire.

Dr. Hanna earned a master’s degree in anthropology from Columbia University in 1975 and a doctoral degree in anthropology from Columbia University in 1976, specializing in nonverbal communication and the arts and society. Her doctoral dissertation was on a group’s choreography and its meaning and style. She is a senior research scholar in the Department of Dance and an affiliate in the Department of Anthropology at the University of Maryland, College Park, Maryland. Dr. Hanna has training in a multitude of dance genres, has taught dance as well as courses on dance theory at the college level, and has continually conducted teacher and youth dance workshops. She has served as a dance consultant and critic, and has written 6 books on dance, published more than 150 articles in dance periodicals, and done many reviews and commentaries on dance. Since 1995, Dr. Hanna has been conducting on-site research on exotic dance and adult entertainment. Along with the research approach she has taken with other forms of dance, she has examined the characteristics and choreography of exotic dance. Dr. Hanna has been retained on 43 occasions as an expert in court matters relating specifically to exotic dance and was accepted as an expert in this field for this matter. (Source)

Nite Moves produced dance videos along with Hanna’s testimony that showed that pole dancing routines are not merely random grinds and slides. The judge was obviously impressed:

The videos depicted dance routines that incorporated acrobatic pole maneuvers, splits, and other patterned repetitions. The pole maneuvers in particular are no small feat to accomplish, and attempting such a performance without the skill and a planned routine of steps could prove dangerous. (Source)

Dr. Hanna testified that erotic dance is, indeed, expressive conduct. She described the “symbolism, fantasy experience and other characteristics of exotic dance” as entertainment as a combination of erotic expression and professional training. She described the particular routines as follows:

somewhat ‘risque’ or ‘naughty’ adult play, a fanciful teasing that transgresses social decorum and dress codes in an ambiance ranging from sedate to carnival-like. Exotic dance is erotic fantasy and communication with a display of nudity, disclosure of more skin and different movements than are seen in public, the use of high heels. . . and incorporation of jazz-like, improvisatory movements in routines.(Source)

However, the best part comes from the judge herself as she refuses to be an agent in the culture wars:

The fact someone may believe that this entertainment is not appropriate for any audience is not the issue. The fact that the dancers remove all or part of their costume during the performances, that the dance routines are seductive in nature and titillation of a patron is the outcome, simply does not render such dance routines as something less than choreographed performances, or remove them from the exception to the general rule of Tax Law § 1105(f)(1). Accordingly, petitioner has met its burden of proof pursuant to Tax Law § 1132 on this issue and the admission charges it collects from its patrons at the door and for the private dances meet the exception to taxation under Tax Law § 1105(f)(1), and are therefore not taxable under this section. (source)

Nite Moves was represented by Andrew McCullough, one of my First Amendment Lawyers’ Association brothers. Congratulations Andy!

Giggity.

Virginia Upskirt Photo Case

Virginia’s intermediate appellate court today held that Virginia’s anti-peeping photography law applies to upskirt videos and photographs taken in such places as retail stores. Wilson v. Virginia, __ Va. App. _, _ S.E. 2d _ (March 24, 2009). Full Story and analysis at Underdog Blog.

Short Url: http://bit.ly/11MKVZ

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Technorati :  Adult Entertainment Law

Suck it, Don Wildmon!

David Ogden confirmed as #2 at the Department of Justice — despite the fact that he (gasp!) represented adult entertainment clients in the past.

I hope that his first task is to deliver a pink slip to Mary Beth Buchanan.

You’re Doing it Wrong

The shoe was totally askin’ for it.

The records required pursuant to 18 U.S.C. section 2257 and 2257(A) and 28 C.F.R. 75 for all materials contained in the website are kept by the following Custodian of Records:

Hugh G. Rection
69 Woody Street
Dildo, Newfoundland, A0B 1P0

Horny Utah? A Utahn’s Perspective

Regarding this post from last week, here is Andy McCullogh’s view on it. McCullogh is a First Amendment Lawyers’ Association brother from the Beehive State.

And the Most Perverted State is…. UTAH!

Oh Utah, thou dost protest too much. It seems that the states where everyone is god fearin’ and porn hatin’ also happen to be the states where the most internet porn subscribers happen to live. See Benjamin Edelman. “Red Light States: Who Buys Online Adult Entertainment?” Journal of Economic Perspectives 23, no. 1 (Winter 2009): 209-230 (PDF here).

Edelman took a look at sales and subscription figures for a number of adult entertainment websites, and he found some of the funniest data I’ve seen in a while. It seems that a more conservative public position on religion, gender, and sexuality translates into higher rates of internet porn memberships. Go figure.

In states where more people agree that “Even today miracles are performed by the power of God” and “I never doubt the existence of God,” there are more subscriptions. In states where more than half of the population proclaims “I have old-fashioned values about family and marriage,” subscription rates are elevated. The same goes for states where Republican education efforts have convinced a majority of the population that “AIDS might be God’s punishment for immoral sexual behaviour.” Source at 219.

Click to expand

Oregon’s Constitution is so protective of free speech, that porn prosecutions there are about as rare as intelligent speeches on technology given by Ted Stevens. On the other hand, the mother-lands of censorship, Utah and Mississippi… why you dirty peckerwoods. All the time you’re trying to censor the internet and anything else you can get your hands on, you’re filling the porn industry’s coffers with your subscription fees!

Although neither Red nor Blue states have a monopoly on porn subscriptions, there is a divide when it comes to conservative vs. liberal porn tastes. In Blue states, the most popular porn sites are adult escort sites. Red states that voted for Bush in 2004 prefer wife-swapping sites, adult webcams, and sites about voyeurism. (Source at 219)

Has the Sixth Circuit Declared Jihad on the First Amendment?

by Jason Fischer

Twice in two weeks, the Sixth Circuit has handed down decisions that are targeted at burdening the adult entertainment industry. As we pointed out in an earlier post and as Professor Salkin explains, the Sixth upheld a questionable Tennessee regulation that creates special licensing requirements for “sexually-oriented businesses.” They also did a number on their previous ruling concerning Section 2257.

If you are an avid reader of the Legal Satyricon, then you are familiar with the infamous little piece of federal legislation which can be found at Title 18, Section 2257 of the United States Code. If not, you can find a little light reading on the subject here and here.

Section 2257 lays out the record-keeping requirements that any producer of sexually explicit images or video must follow, in order to verify that none of the participants is underage. Sounds reasonable, right? Gotta make sure that no one is making child pornography, right? Fair enough, but that isn’t what this particular piece of legislation is doing. It’s suppressing other forms of expression that have nothing to do with underage performers.

As written, Section 2257 requires anyone, who takes dirty pictures or films a naughty movie, must keep special records that show the identity and age of all participants. “Anyone” includes you and your spouse – no matter how old you both are, even if you never plan on showing your kink materials to anyone else. Section 2257 also requires that you and your spouse attach a notice to all of your dirty pictures and naughty movies, which indicates where those records can be found. If a member of the law enforcement community comes to that place, where those records are to be kept, the records must be provided upon request – no warrant required. Failure to do any of the foregoing will result in criminal liability.

It doesn’t take a hard-core civil libertarian to see the issues with a statute that makes punishable, by up to five years in federal prison, constitutionally protected conduct which was perfectly legal before the statute was enacted.

Recognizing these problems with the law, Connection Distributing Co., a publisher of a swingers’ magazines, filed an action in federal court, seeking to invalidate the statute. Late in 2007, after fighting the legal battle for more than ten years, Connection received a victory when the Sixth Circuit Court of Appeals ruled that Section 2257 was unconstitutional. For an in-depth discussion of that ruling, along with plenty of analysis of the First Amendment problems with the law, you can read up on it here.

This would have been the end of the matter, except that the powers that be determined that the issue was too important to be decided by a three-judge panel. As a result, the case was reviewed by seventeen judges, sitting en banc, and that panel decided to reverse the original holding. The court’s full opinion can be found here, but below are the high points:

Our government cannot enact laws that regulate speech based on its content – that would be censorship. Connection argued that Section 2257 was content-based regulation, which violates the First Amendment, because it only applies to certain kinds of images. In simple terms, Section 2257 burdens pictures that would be found in a photo-illustrated Karma Sutra, but not those found in a coffee table book about kittens. However, according to the court, it’s okay to ban speech, as long as the motives for doing so are not based on the content. The court reasons that “[s]o long . . . as the law addresses the collateral or ‘secondary effects’ of the expression, not the effect the expression itself will have on others, it will be treated as content neutral.”

“[T]he law [does not] implicate the central risk of a content-based regulation of speech: that the government has impermissibly interfered with the free exchange of ideas by imposing trade barriers on certain viewpoints but not on others. . . . No doubt, § 2257 favors a particular viewpoint on this issue: Congress is against child pornography and is using this law to prevent it. Although that kind of viewpoint discrimination normally would be fatal to a law, that is not true here because the Constitution allows the government to embrace this viewpoint and to act on it by imposing a complete trade barrier on the production and trafficking of this kind of speech. . . . What we have, then, is a valid speech-related end—eliminating child pornography—followed by a means of achieving that end, a proof-of-age requirement that refers to the content of the speech (specifically defined images) not because of its effect on the audience but because it is the kind of speech that implicates the government’s ban on child pornography. That kind of sensible reference to the content of speech—how else would the government impose a proof-of-age requirement designed to address child pornography?—does not rise to the level of a presumptively impermissible content-based regulation of speech.”

Judge Sutton, who authored the majority opinion, seems to ignore the fact that Congress has already imposed a “complete trade barrier” around child pornography. It has enacted laws that make the production of child pornography illegal. See 18 U.S.C. § 2251 (2006). There are also laws that make transportation, shipping, receiving, and distribution of child pornography illegal. See id. § 2252. In contrast to 2257, these provisions are narrowly tailored to target the specific, permissible goal of Congress that Sutton describes. Shouldn’t they be enough?

Six of the seventeen judges seemed to think so. In four separate dissenting opinions, those judges expressed concern about the application of Section 2257 to private couples, engaged in First Amendment protected conduct while in the privacy of their own homes. Judge Kennedy was not comforted by the assertions, made by the Attorney General, that those couples would not be prosecuted.

“Because federal criminal statutes outlast Attorneys General, the reach of the statute’s text, not a promise from law enforcement nor a recently enacted regulation, is the proper focus of our inquiry.”

Central to the dispute between the majority and the dissenters was the question of how many people, who are engaged in normally lawful activities, would be caught up in the “sweep” of Section 2257. How many is too many? How many is enough to call the statute “overbroad”?

“The majority states that the question of substantiality is: When ‘is it appropriate to invalidate a law in all of its applications when its invalidity can be shown (or assumed) in just some of its applications?’ . . . That could very well be framed as: ‘When is it appropriate to adjudicate unconstitutional applications of a statute on a case-by-case basis versus invalidating a law in its entirety because of some unconstitutional applications?’ The second formulation not only brings to life a central concern that runs throughout overbreadth–namely that unconstitutional applications otherwise may never make it before the court because speakers refrain from speaking, injuring speech and leaving few left to challenge the unconstitutional law–it also presents for consideration the burden–as it pertains to the substantiality of overbreadth–on a private couple in challenging the law as-applied.”

Another constitutional issue, which was raised by some of Connection’s subscribers, was based in the Fifth Amendment’s protection from self-incrimination. Everyone has the right to “remain silent” when they are the subject of a criminal investigation. The problem here is that the regulations surrounding Section 2257 allow law enforcement to use the records, provided in compliance with that statute, as evidence in other matters that are unrelated to the content for which the records were created. The majority refrained from ruling on this particular challenge, claiming that the issue was not ripe for review.

In his dissenting opinion, Judge Clay describes the danger of leaving the law intact:

“[T]he statute itself no longer begins and ends with the record-keeping requirement; because of the 2003 amendment, it now includes the threat of criminal prosecution for child pornography, sexual exploitation of children, and obscenity, based on information in the records required by the statute. . . . Because the statute now explicitly authorizes the government to use the identifying information for the purpose of prosecuting other crimes, the fear of Connection’s law-abiding advertisers that they may one day be subject to criminal investigation or prosecution is not unreasonable. To minimize this concern by stating that adult swingers who follow the law have nothing to fear ignores the reality that law-abiding people unfortunately can mistakenly become the targets of criminal prosecutions, with all of the accompanying burdens.”

One has to wonder if the judges that voted to uphold 2257 are allowing their own personal morality to motivate their decision. Should that kind of results-oriented jurisprudence really be allowed? This observer thinks not. Morality and legality are not the same thing. Isn’t preventing this kind of situation precisely the reason why the First Amendment is part of our Constitution? What say you?

Sixth Circuit Upholds Adult Entertainment Regulation

Hot on the heels of its recent mental goatse to preserve Section 2257, the Sixth Circuit does it again with an adult entertainment ordinance challenge. I would write about it, but why duplicate Professor Salkin’s excellent effort?

“Hooters Culture” Causes Stir in Delaware

This just in from the asshat patrol:

Neighbors of a new Hooters restaurant near Newark are fighting to keep it from getting a liquor license, saying the eatery poses the potential for risqué activities that do not jibe with the surrounding community.

“People were concerned about Bikers Night and Lingerie Night and other things associated with the Hooters culture,” state Sen. Karen Peterson, D-Stanton, said of the neighbors near the Astro Shopping Center on Kirkwood Highway, (source)

“Hooters culture.” You have a problem with Hooters culture? First off, you just declared war on Flori-duh. Second, you live in DELAWARE.