The adult industry has been working tirelessly to show the unconstitutionality of 18 USC Ã‚Â§2257 record keeping requirements, which were made into law as part of the Child Protection and Obscenity Enforcement Act of 1988 and which require producers of sexually explicit material to obtain proof of age for every performer and keep those records in case the FBI comes calling.
Last month, the judge presiding over the challenge to Section 2257 by the Free Speech Coalition, a non-profit trade association of the adult industry, ruled 2257 constitutional under the First Amendment, but not under the Fourth with regard to the inspections of producers homes without prior notice. The memorandum from Judge Michael M. Baylson reads as follows:
The extent to which the adult porn industry utilizes young-looking performers is the central fact issue in the trial of this case. The attraction of males to younger women is not a new story. Mozart focused on this theme in several of his operas. In The Magic Flute, Papageno, the lonely bird-catcher, wonders how he is ever going to meet someone who will become his wife. When a woman dressed as an old hag expresses some interest in him, in a raspy, elderly voice, Papageno expresses revulsion; but when this woman later sheds her outer garments, revealing a very youthful and pretty soprano, they fall in love and prance off to the famous tunes of Ã¢â‚¬Å“Pap, Pap . . . Pap, Pap . . . Pap, Pap, Pap . . .Ã¢â‚¬Â Mozart used the same theme in Don Giovanni, where the nobleman seduces a naÃƒÂ¯ve young lady, Zerlina, and in the Marriage of Figaro, where the Count is attracted to the young chamber-maid, Susannah. In literature, Faust was enamored of Margaret; Dante celebrated the youthful Francesca Da Rimini; and Hawthorne created Hester Prynne, heroine of The Scarlet Letter. But we need not go back several hundred years for these metaphors. In Lolita, Vladmir Nabakov used the same theme to great notoriety, but also to great acclaim. His hero, Humbert HumbertÃ¢â‚¬â„¢s opening line, Ã¢â‚¬Å“the fire in my loins,Ã¢â‚¬Â set the tone for his enchantment with a nymphet.
Plaintiffs are a group of adult pornography producers, photographers, artists, and educators, who devote substantial time and energies to the creation of erotic and sexually explicit works. They seek a declaratory judgment and an injunction against the enforcement of 18 U.S.C. Ã‚Â§ 2257 and 2257A (Ã¢â‚¬Å“the StatutesÃ¢â‚¬Â) and their corresponding regulations, which impose recordkeeping, labeling, and inspection requirements on producers of sexually explicit media. Plaintiffs contend the Statutes and their corresponding regulations run afoul of the First and Fourth Amendment because they burden an excessive amount of speech and allow for unreasonable, warrantless inspections.
In June 2012, the Court held an 8-day bench trial during which 21 witnesses presented live testimony and over 300 exhibits were entered into evidence. (ECF 197-206, 208, 210, 212, 214). The Court made detailed findings of fact (ECF 212), and the parties submitted lengthy post-trial briefs. (ECF 216-219). For the reasons that follow, the Court has concluded the government largely succeeded in defending the constitutionality of the Statutes. Namely, the Court finds Sections 2257 and 2257A and their corresponding regulations to be constitutional under the First Amendment, both as-applied and facially. It also finds the Statutes and regulations to be constitutional under the Fourth Amendment, except for in one regard Ã¢â‚¬â€œ the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record. Nonetheless, the Court declines to issue an injunction under the Fourth Amendment, either as-applied or facially, because it finds the prospect of future inspections too remote to justify such relief.
“[Judge Baylson] determined the evidence to be insufficient — inadequate — to establish that any sexually-explicit video and pictures are created by private, noncommercial persons and are kept in their homes. Honest. I am not making this up,” attorney J.D. Obenberger wrote in a post after the ruling. “This is what Judge Baylson concluded after hearing the testimony of two expert witnesses who offered abundant, authoritative evidence about sexting. In order to to arrive at this conclusion, [Baylson] pretended that the expression, ‘sexually explicit’ is not a well-understood expression in contemporary English and that specific descriptions of what was depicted in sexts needed to be identified to establish that Section 2257 applied to sexts. Again, really. Honest. This is what he says at Page 53 of the Slip Memorandum.”
Obenberger has a great rundown about why you, as a regular American, should care. Read it.
Opponents of 2257 will fight on. In the meantime, the adult industry is really pissed that no one else seems to care about complying with the regulation. Gawker has a five-minute “preview” of the Sydney Leathers porn without 2257 labeling. And in a recent post on AVN, one of the industry’s go-to news sources, there’s an oblique bit of whingeing about how few blogs at the porn amplification machine that is Tumblr really bother to comply with 2257, either.
Tom Hymes, himself a plaintiff in the case challenging 2257, writes:
Gawker, however, appears to believe that child pornography laws in the United States are there to be ignored, at least for people like them. LetÃ¢â‚¬â„¢s not forget that Fleshbot, when it was owned by Gawker, also took the legal position that it did not have to comply with the Ã‚Â§2257 child porn statute. Now that it has been bought by its former editor, however, that foolish stance has been corrected.
This is not the first time AVN has mentioned the willful violation of this federal law by entitled mainstreamers. In 2010, gossip blogger Perez Hilton tried the same thing, posting an explicit clip featuring his little-person sidekick, Chuy Bravo. In short order, however, he pulled the clip down, probably after his lawyers got through reading him the riot act.
WeÃ¢â‚¬â„¢ll see if something similar happens with Gawker. If it doesn’t, and Gawker (and others) get away with disseminating porn outside the regulatory framework, the government will have all but conceded that it was lying when it claimed again and again in court documents and in person that Ã‚Â§2257 is an essential tool in the fight against the proliferation of child pornography — and that the adult content production industry is not its sole target. If that is so, it cannot allow highly trafficked sites like gawker.com to willfully violate that particular law without calling its recent defense of the law into question.
The adult industry is fighting a battle, and they’re not afraid to finger anyone in the mainstream if it means proving that the system is unjustly targeting them.