There seems to be some confusion over the exemption date for Title 18 Section 2257. The law very clearly says (a)(1) “November 1, 1990.” I’ve been told by one attorney that the Sundance vs. Reno case has some bearing on changing the date to July 3, 1995, which is used on many sites, but the answer wasn’t very satisfying and my attorney has advised to use the November 1, 1990 date.Dear YNOT,
There seems to be some confusion over the exemption date for Title 18 Section 2257. The law very clearly says (a)(1) “November 1, 1990.” I’ve been told by one attorney that the Sundance vs. Reno case has some bearing on changing the date to July 3, 1995, which is used on many sites, but the answer wasn’t very satisfying and my attorney has advised to use the November 1, 1990 date. I’ve read the Sundance vs. Reno case several times and it only seems to address the implementing regulations as they pertain to 75.1 (c)(4)(iii) and producers who are not directly involved in the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers. It doesn’t directly address the production date exemption, so my question is can somebody please explain how Sundance vs. Reno changes the date to July 3, 1995 and if that decision has relevance outside the 10th District? And is this answer a liberal or strict interpretation of the statute, regulations and relevant case law?
Jason
support@imageauction.com
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DECIPHERING THE EFFECTIVE DATE OF SECTION 2257
The reader asks a valid question about the effective date of Section 2257 relating to records keeping. July 3, 1995 is widely and correctly recognized as the effective date of the labeling and record-keeping requirements found in 18 U.S.C. § 2257. Understanding why that is the case, however, now requires a quick refresher in history.
The labeling and record-keeping requirements were first enacted in 1988 as a part of the Child Protection and Obscenity Enforcement Act (“CPOEA”), which included an array of miseries brought about by the so-called Meese Commission. Veterans of the adult entertainment industry will recall that Attorney General Edwin Meese III was the centerpiece of President Reagan’s payback to the Religious Right after his 1984 reelection. It was the Attorney General’s Commission on Obscenity and Pornography – the “Meese Commission” that produced the July, 1986, best-selling “Final Report” containing a laundry list of recommendations on how to rid the country of pornography. CPOEA was enacted to accomplish that objective.
The original labeling and record-keeping rules were held unconstitutional in American Library Ass’n v. Thornburgh, 713 F.Supp. 469 (D.D.C. 1989). Congress quickly responded with the Child Protection Restoration and Penalties Enhancement Act of 1990, attempting to address the fault that the court found in the original Act.
Enforcement of the revised 18 U.S.C. § 2257 was enjoined before it ever went into effect because the Department of Justice had not managed to promulgate the regulations required by the statute. Once the regulations were put into place, the statute was found unconstitutional and a permanent injunction was issued. American Library Ass’n. v. Barr, 794 F.Supp. 412 (D.D.C. 1992). The government appealed, and the Court of Appeals upheld § 2257 in general, although placed some limitations upon it. American Library Ass’n. v. Reno, 33 F.3d 78 (D.C. Cir. 1994). The United States Supreme Court denied review on June 26, 1995. American Library Ass’n. v. Reno, 515 U.S. 1158, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995).
Because there was never an order dissolving the injunction pending appeal, it remained in effect until the order of reversal (called the “mandate”) was finally issued by the Court of Appeals, which was on July 3, 1995. Shortly thereafter, the Department of Justice wrote a letter to the plaintiffs in the litigation acknowledging that as the effective date of the requirements of § 2257.
Notably, some of the record-keeping requirements were struck down in Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), striking down the requirement that so-called “secondary producers” keep records. Perhaps more significant is the pending litigation in the Connection Distributing litigation. Originally, the trial court denied a preliminary injunction in the face of Connection’s claim that § 2257 was unconstitutional when applied to a so-called “swingers” magazine. The Court of Appeals affirmed and the Supreme Court declined to intervene. Connection Distributing Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) (NO. 97-3092), cert. denied 526 U.S. 1087, 119 S.Ct. 1496, 143 L.Ed.2d 650 (1999). After a final trial, the court again upheld the statute. But on appeal from the final trial, the court of appeals remanded the case for reconsideration in light of the spate of recent erotic speech decisions from the Supreme Court, most significantly City of Los Angeles v. Alameda Books, which imposed new requirements on time, place or manner regulations of speech such as § 2257. Connection Distributing Co. v. Reno, 46 Fed.Appx. 837, 2002 WL 31119685 (6th Cir. 2002). However, the effective date remains July 3, 1995.
Clyde DeWitt is a partner in the Los-Angeles-based law firm of Weston, Garrou & DeWitt. He can be reached at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or by email at clydedewitt@earthlink.net.
This article is not intended as legal advice. Readers who believe that any of the above might impact them should contact their personal attorneys.
