The Free Speech Coalition (FSC) is disappointed that the House of Representatives passed a seriously flawed provision that claims to prevent the production and distribution of child pornography but does nothing of the sort.Yesterday the House of Representatives passed H.R. 4472, the “Children’s Safety and Violent Crime Reduction Act of 2005,” a comprehensive bill that deals mostly with child sexual predators and gangs. An unrelated subsection–Title VI–Child Pornography Prevention–is a seriously flawed provision that claims to prevent the production and distribution of child pornography by strengthening and expanding record-keeping requirements and criminal sanctions under U.S.C. 18 §2257.
The issues addressed are not new; Congress continues to legislate a solution unrelated to the problem it identifies. The version enacted yesterday is a hybrid of the Pence Amendment, H.R. 3726, introduced by Representative Mike Pence (R-Ind.) last year and passed in the House in the fall of 2005, and S. 2140, a significantly different Senate version introduced by Senator Orrin Hatch (R-Utah) in December of 2005.
Title VI is the worst of both bills, and if passed into law in anything resembling its current form, would represent an abusive and unconstitutional affront to freedom of speech in this country. Worse it would do nothing to aid the eradication of child pornography or the incarceration of child pornographers, an objective supported by all members of the Free Speech Coalition. Indeed, the legitimate adult entertainment industry has been, and always will be, an active participant in the global fight against child pornography.
We believe that this bill, which targets this industry as well as innocent citizens engaged in lawful sexual speech, cannot succeed for the simple reason that it is aimed at the wrong people. Child pornographers do not keep records of their crimes!
FSC staff attorneys will need time to analyze the new bill, but we can safely say that today the House clearly made worse already unconstitutional 2257 regulations. Specifically, H.R. 4472:
- Creates section 2257A, which provides record keeping requirements for simulated sexual content;
- Gives the Attorney General of the Unites States the discretion to define certain activities not subject to 2257;
- Adds civil and criminal asset forfeiture penalties in 2257 and obscenity cases;
- Restores section 2256 (E), the “lascivious exhibition of the genitals or pubic area of any person,” to the definition of “sexually explicit conduct” for the purposes of 2257;
- Makes the production of obscenity a federal criminal offense under Section 1465 of title 18 of the United States Code;
- Prohibits defense counsel and expert witnesses in a child pornography case from reproducing evidence that is defined as child pornography under Section 2256.
Attorneys for the Free Speech Coalition are also assessing what impact, if any, this bill would have on current 2257 litigation, but we have been assured that nothing in it can or will undo the victory we achieved in the recent preliminary injunction ruling in Denver.
But neither have we thrown in the towel with respect to the final outcome of H.R. 4472. We will continue to work through our federal lobbyists to convince the Senate to avoid the expense and time involved in litigation at the federal level, and instead reject the current Title VI legislation in favor of legislation that will actually do what it claims.
Free Speech Coalition is the trade organization of the adult entertainment industry. Its mission is to safeguard the industry from oppressive governmental regulation and to promote good business practices within the industry.
