Wednesday, Representative Mike Pence (R-IN) tacked on an amendment to the Child Safety Act of 2005 that would expand the scope of 2257, expand the scope of obscenity laws, and expand law enforcement’s powers in building criminal cases against adult industry companies. The amendment passed the Full Committee, and the entire bill was later approved by the House of Representatives in a full vote. Although the future of this bill remains in question as it heads to the Senate, YNOT spoke with respected adult industry attorney Jeffrey Douglas to get some answers to questions that are on the minds of adult webmasters.YNOT: How does something like this Pence legislation get as far as a House vote without the adult industry knowing about it?
JD: The adult industry’s lobbying efforts are in their infancy. However this particular bill benefited from the Republican majority manipulating procedural rules so as to have a Floor vote without any hearings. This is how most of the anti-adult industry bills have passed in recent memory. The simulated child pornography law struck down by the Supreme Court in Ashcroft v. Free Speech Coalition never had a hearing, for example.
YNOT: So now that the House has approved it, where does it go from here? What are the chances that the Senate goes a different direction?
JD: The bill now goes to the Senate, where our efforts will be focused on holding public hearings and allying ourselves with the traditional First Amendment groups, as well as the Motion Picture Association of America, whose members will be devastated by this broadened recordkeeping obligations. We expect to have some success in the Senate, limiting some of the more outlandish parts, but do not forget that the Republican Party is pandering wholeheartedly to the adult industry’s sworn enemies. There has been a trend to enact laws which are clearly unconstitutional to throw red meat to the so-called Christian lions, and to put pressure on the Federal courts to ignore First Amendment values and protections.
YNOT: How does this affect the FSC’s 2257 challenge, if at all?
JD: Unless and until it becomes law, this does not have any legal effect on the FSC challenge. How it might affect the judge whose ruling we await, I could only speculate. My guess would be that it would have no effect. If it were to become law in its current form, we would benefit in several ways because the existing constitutional flaws would be exaggerated and we would expect to have new, powerful mainstream allies. Our argument based on the Sundance opinion would have to be reworked, because this bill was designed to reverse Sundance. In doing so, they created new constitutional problems.
YNOT: What does this bill, if signed into law, mean for the mainstream Hollywood film industry?
JD: Hollywood would be devastated. Because the bill includes simulated sex and nudity in its definitions of actual sexually explicit conduct, most “R”-rated movies would be required to create, maintain and distribute the identifying information on major (and minor) Hollywood performers. That is, Jodie Foster, Angelina Jolie, Selma Hayak, Meg Ryan and hundreds of other stars have made movies simulating sex. All of their IDs and other personal information would now be available to stalkers and identity thieves courtesy of the Federal government. I would love to hear Pence explain to Jodie Foster how this invasion of her privacy protects children.
YNOT: Would mainstream movie theaters or Video On Demand services now be in a position where they would have to keep records too?
JD: I do not believe movie theaters or video stores without websites would be record keepers. But VOD and any digitizers of nudity and or simulated sex would now be record keepers.
YNOT: Was Pence intentionally targeting Hollywood with some of these changes?
JD: I do not have an opinion on that. It seems incredibly stupid to deliberately implicate as powerful an opposition as Hollywood. However, when God is whispering in your ear (which I believe is how King Henry VII is supposed to have acquired syphilis – by having Cardinal Wollsley whisper in his ear), anything is possible.
YNOT: Rep. Pence specifically mentioned “work from home pornographers” as a target in his speeches after introducing this bill. Of course he (like many other servants of the religious right) often mixes child pornography and protected adult entertainment together in one breath. What does this law mean for the “work at home” webmaster who were hoping to avoid 2257 by distributing softcore only?
JD: For the webmaster who has developed a business model based on softcore or mere nude imagery only, HR 3726 destroys the business model, irrespective of where you work. Everyone would need to become a 2257 record keeper.
YNOT: If this is signed into law, what are our options?
JD: If this becomes law more litigation will ensue. The industry cannot live with the current version of 2257. The Pence version simply raises the stakes and expands the injury.
YNOT: Other than the 2257 changes, what are the other most disturbing aspects of this Bill?
JD: The attempt to eliminate or minimize judicial supervision for warrants is a full bore assault on the First and Fourth Amendments. The idea is to undo over forty years of First Amendment law and allow prosecutors to seize protected materials without judicial oversight. That is a truly devastating possibility.
YNOT: I know you cannot provide any legal advice, but in a general sense, is there a realistic chance that these changes to 2257 hold up to a challenge?
JD: The existing strong meritorious constitutionally based challenges to 18 U.S.C. § 2257 will just be stronger. I am optimistic that the Pence version of 2257 would be struck down.
YNOT: What sort of questions should webmasters be asking their attorneys right about now?
JD: I would not spend a lot of time and energy consulting with attorneys about the impact of the Pence bill. It is pure speculation what will come out of Congress at this stage. Afterwards, such consultations are absolutely necessary. For now, what everyone needs to ask a lawyer is as follows:
To what extent am I a primary or secondary producer under the new regulations? Assuming that I am a recordkeeper, what is the best way for me to meet the recordkeeping and indexing requirements? How can I live with or correct my past omissions? If I am not a recordkeeper (a retailer or distributor), what are my obligations for checking proper labeling?
YNOT: Thanks Jeffrey, we know you’re busy and we truly appreciate your time.
