The Background – The War on Sex
Social conservatives on both the right and left take great delight in attempting to carve out an erotic speech exception to the First Amendment. The far right thinks that their imaginary friend knows what is best for us – and that is that we shouldn’t have access to erotic materials. The far left is just as bad – believing that they know how to bring us to utopia, and banning erotica is a cobblestone in that road. Neither have any respect for the First Amendment. (For a great discussion of the issue of erophobia, see Dr. Marty Klein, America’s War on Sex).
For the most part, these efforts have not been successful. Outright bans on adult entertainment are unconstitutional. Attempts by misguided left-leaning paternalists to create private causes of action engineered to drive erotica out of business have been no more successful. See, e.g., American Booksellers Ass’n. v. Hudnut, 771 F.2d 323 (7th Cir. 1985).
However, when Congress passed 18 U.S.C. § 2257, it inaugurated a new, creative, and somewhat scary “third front” in the war on sexual expression. Forged in the fires of the Meese Commission, Section 2257 attempted to drive adult entertainment out of business by simply making it too burdensome to produce it.
What is Section 2257?
Section 2257 is a law that requires any “producer” of “actual sexually explicit” content to keep age verification records pertaining to anyone appearing in that content. Explained that simply, Section 2257 seems quite reasonable. If you are going to produce pornography, make sure that the talent is over the age of 18, and be able to prove it.
If only it were that simple.
It isn’t just about pornography
First, lets take a look at what kind of images are regulated by Section 2257. In order to fall under Section 2257, the images must be of “actual sexually explicit conduct.” (hereinafter, ASEC). What does ASEC include? As articulated by the Sixth Circuit, ASEC includes: “sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(i) (2006). It also includes images of bestiality, masturbation, sadistic or masochistic abuse, and “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(ii)-(v) (2006).
See? Already things are getting a little muddy. Any reasonable person would have to agree that “genital-genital intercourse” is a relatively clear term. But, what does “sadistic or masochistic abuse” mean? The law contains virtually no guidance in that department. A photograph of dripping candle wax on someone’s leg could qualify as “sadistic or masochistic abuse,” as could any number of other activities that don’t come close to any definition of “pornography.” Remember, the supposed goal of this statute is to keep children out of pornography..
How about “lascivious exhibition of the genitals or pubic area of any person”??? Go ahead, try to actually define those terms. I’ll wait….
Who is to determine whether the “pubic area” of a person is in a state of “lascivious exhibition” in any given photograph or video? Under this statute, most Victoria’s Secret catalogs, Sports Illustrated swimsuit issues, and any number of seemingly “innocent” images could be swept up in the anti-porn dragnet. That would be just fine with the erophobes. It is not just fine as far as the Constitution is concerned.
Now that we have figured out what kind of images or depictions trigger responsibility to keep Section 2257 records, let’s look at what that responsibility means:
Under § 2257, a producer of sexually explicit images must inspect the talent’s government-issued photo identification to ascertain her (or his) date of birth. See 18 U.S.C. § 2257(b)(1) (2006); 28 C.F.R.§ 75.2(a)(1). Not such a big deal… but the government couldn’t be happy with that.
Section 2257 also requires that the producer copy the ID and keep it in a file. The producer must also record any stage names or aliases the talent has used in the past, and record and index all places where the image is published and keep all that information in a file where it is not co-mingled with any other records of any kind. See 18 U.S.C. § 2257(b) (2006); 28 C.F.R. § 75.2(a), (d), (e). Also, the way the regulations are written, it makes the adult entertainment industry into the one industry that is either protected from outsourcing, or at the least, the entertainment equivalent of the minuteman brigade. (Link)
Accordingly, if a producer of First Amendment protected adult material puts anything in an entertainer’s file that is not specifically required by 2257, it could mean that the producer is off to jail.
This isn’t the worst of it…
Fourth Amendment? What Fourth Amendment?
Once the producer creates these records, indexes them, and cross-references them, that isn’t the end of the line. The producer must then list a “2257 statement,” listing the date of production, and an address where the records may be inspected during regular business hours – and those hours must be at least 20 hours per week. 18 U.S.C. § 2257(e) (2006); 28 C.F.R. § 75.6(a), (b). There are more technical requirements as well, including that the statement must be in 12 point font, printed in a color that contrasts with the background, and must be prominently displayed. 28 C.F.R. § 75.6(e) (2006).
The Attorney General, or any designated agent may now come knock on the producer’s door for a “2257 inspection.” By law, they are not allowed to give any advance notice. No warrant. No probable cause. No reasonable suspicion. Once every four months, for no reason at all, FBI agents get to show up at the producer’s door for an inspection – and they can come more often if there is a reasonable suspicion that a violation has occurred. 18 U.S.C. § 2257(c) (2006); 28 C.F.R. § 75.5(b), (c), (d) (2006).
If you blow the requirements – five years in jail. That’s not for having underage performers, mind you. If your paperwork is not in order you are staring down the barrel of a five year jail sentence.
With this as a backdrop, the Free Speech Coalition is fighting back. The statute and its administrative regulations are clearly unconstitutional, clearly intended to burden free expression, and don’t do a damn thing to prevent child pornography from being produced.
Lets wish the FSC the best of luck.
2257 delendum est!