Friday, February 20, 2009

BREAKING: 2257 Regs Upheld by US Sixth Appealate Court

This news just went over will simply reprint the article from there.

2257 Upheld in Connections Case

LOS ANGELES — The United States Court of Appeals for the Sixth Circuit has upheld the 18 U.S.C. § 2257 federal record-keeping law in the long-contested Connections case.

Writing for the majority, Circuit Judge Sutton addressed what he sees as the critical question in this issue:

"Under what circumstances is it appropriate to invalidate a law in all of its applications when its invalidity can be shown [or assumed] in just some of its applications?" Sutton wrote. "When we think about the problem that way, it is hard to understand who is being hurt by resisting the plaintiffs' call to invalidate the statute on its face."

Sutton went on to discuss the hypothetical middle-aged couple shooting their own erotica — a practice used as an example of the burdensome requirements of the statute.

"Over twenty years and numerous administrations, the statute has never been enforced in this setting, and the attorney general has publicly taken the position that he will not enforce the statute in this setting," Sutton wrote. "On the other side of the equation, we are being asked to invalidate a law in its entirety based on a worst-case scenario that, to our knowledge, has never occurred, that may never come to pass and that has not been shown to involve a materially significant number of people."

According to attorney Gregory A. Piccionelli, "The majority opinion is a piece of pretzel-logic that utterly fails to address any of the well-reasoned arguments made in the original Sixth Circuit panel's invalidation of the regulations."

"It is, pure and simple, an outcome oriented opinion by the majority, comprising mostly conservative republican-appointed jurists, that, as we expected, were going to save 2257 at any cost," Piccionelli told XBIZ. "It is both sad and dangerous that conservative culture warriors occupy seats on many of our highest courts."

Opposing the ruling was Circuit Judge Helene N. White, who in writing a dissenting opinion stated her belief that "under intermediate scrutiny the identification/record-keeping requirements of 2257 impose an unconstitutional burden on plaintiffs' First Amendment rights."

While White expressed reluctance over the prospect of invalidating 2257 in its entirety, she agreed with Kennedy that "2257's sweep is so broad … and its burdens so potentially chilling of protected speech, that requiring case-by-case challenges to its overbreadth is inconsistent with the Supreme Court's First Amendment jurisprudence."

Part of White's reasoning was based on the number of people that the regulations impact, which she acknowledged to be in the millions, saying "…we do know that millions of adults exchange or share personally-produced sexually-explicit depictions." She cited a court exhibit listing more than 13 million "personal ads containing sexually-explicit text and images on a single website for sex and swinger personal ads." Of the examined ads, 94 percent involved adults over 21 years of age.

To this observer, the court's flexible attitude towards interpreting 2257 and its ability to accomplish the goal of protecting children while imposing the least burden on protected expression was well summed up by Circuit Judge Clay: "…although the government will always have a significant interest in eradicating and prosecuting cases of child pornography, the nature of the burden imposed by a particular statute may become more evident over time."

Piccionelli agrees that the statute's continued flaws should inspire hope in its eventual overturn and that operators should not lose faith due to this ruling.

"2257 is a constitutional abomination," Piccionelli added. "We will win in the end."

Not everyone seems as optimistic, however. As for the future of the statute, "it really comes down to whether or not the U.S. Supreme Court will take the case," attorney Larry Walters told XBIZ. "But that is much less likely to happen since the circuit court upheld the law, rather than overturned it."

Walters also pointed to this case as a good example of how conservative judges are finding ways of nitpicking away at a plaintiff's challenges and imposing pre-enforcement challenges that can be difficult to overcome — including the legal fees associated with mounting a 15-year-long court case.

The upholding of 2257 presents a possible immediate threat to the industry as well:

"Webmasters [and others] should be much more concerned about possible inspections and prosecutions," Walters said. "Now that the law has been upheld, 2257 inspections could resume at any time."

Apparently, the view of the majority decision is that since 2257 has not been enforced that much and very few producers have been prosecuted under its regulations, that invalidates the claims of the plantiffs challenging the regs that the impact of the regs would be that severe. In short, "Trust us...we won't go too far."

Yeah, right...neither would the folks that originally passed the USA Patriot Act.

Although I'm sure that an appeal to the US Supreme Court is virtually assured, the chances that that Court would in fact decide to hear the decision is highly unlikely, since they have a history of generally upholding lower court decisions.

In short, we may have to put up with 2257 for quite a long time. The only alternative is direct political action to overturn the regulations.....maybe this will finally get the industry and its fans off their asses and get more politically involved.

1 comment:

  1. This is not good news, but it's not unexpected. Nor do I expect that the Roberts court will choose to hear any challenges on this matter. The ruling majority there has mastered the art of mokusatsu - killing by silence. They don't set bold, controversial precedents themselves. They just sit back and let the various marginally qualified ideologues with whom Bush stacked the federal benches to do it for them.

    But to be fair, even in a far less partisan judicial atmosphere, 2257 would be problematic. It's mere existence clearly violates due process, by definition compelling producers of lawful sexually explicit depictions to prove themselve not guilty of the heinous crime of making child pornography.

    Clearly, those who make child pornography know it's unlawful, do it in secret and couldn't make any attempt to comply with the requirements of any iteration of 2257 without incriminating themselves.

    Therefore, as has often been said in and out of court, 2257 never has prevented a single case of child sexual abuse and never will. It forces all pornographers to waive their presumption of innocence while those who engage in sexual acts with minors, ironically, will be given that presumption should they ever be arrested for the crime of actually making child pornography.

    For those who take The Constitution seriously, the legalities here are a no-brainer. When it comes to 2257, the thing stinks for itself.

    And while it was born under a fairly liberal administration that didn't have much enthusiasm for employing it as a means to harrass producers of legal pornography, it didn't take long before some extremist cranks got the wheel and showed how easily it could be driven right over basic legal protections with a manifestly prohibitionist zeal.

    While 2257's power to protect children has yet to be demonstrated in any way, it's power to infringe on sexual speech has been proven beyond a doubt.

    But for those of us who work in this trade, I've always argued that 2257 has an upside. For one thing, it's the first piece of federal legislation ever to recognize the legality of sexually explicit depictions by and for adults. I suppose it's not a vast improvement, but it's the first federal law regarding pornography that treats it as a business instead of an ongoing criminal enterprise. By codifying the existence of licit pornography, backhandidly differentiating it from other kinds, it accepts porn's existence as a reality on the ground.

    And while there have never been significant numbers of cases of minors slipping through the net into adult porn – exactly two that I know of for certain in 25 years on this job - it doesn't hurt us to be as vigilant as possible about keeping things that way, and to be able to show due diligence when called on it.

    I don't think we need criminal sanctions to get producers to show the common sense they've shown consistently for three decades, but having some uniform standards for keeping records of who made what pictures and when protects producers far more effectively than it does minors. The paperwork associated with the orginal, fairly modest, requirements of 2257, while invasive of the privacy of everyone involved, nonetheless demonstrated that a legal transaction had taken place at a particular place and time in the creation of the depictions recorded by the paperwork. And it protects adult performers in the same way.

    Should there be, for instance, civil litigation at some point subsequent to the date of production, both plaintiff and defendant would have access to at least basic, factual evidence regarding who did what with whom and when. The paper could cut either way, but its mere existence makes certain misrepresentations effectively impossible for either side.

    Which by an indirect route brings us back to Trinity's post re TPoP, the creators of which seem to need reminding not only, as Ren puts it so succinctly, that The First Amendment is not a suggestion, but also the rest of the body of federal law.

    Despite their red-herring "fair use" alibi, which has already been fileted, breaded and fried here, the producers have, as Robert Jensen baldly admitted to me, relied on the record keeping of pornographers to guarantee the compliance of the footage stolen for TPoP.

    But even more chutzpadeh, in light of TPoP's trashing of The Free Speech Coalition as enablers of virtual kiddie porn, is the indisputable fact that the F.S.C.'s injunction against the enforcement of 2257 has kept federal inspectors away not only from the doors of porn studiios, but also away from the cozy university offices of TPoP's producers, as the latter well know.

    While I can't imagine, given the far larger concerns on the minds of federal law enforcement personnel at the moment, that either is likely to receive frequent visits for a quick file check, that possibility also can't be ruled out for either. At some point in the not too distant future, some form of 2257 will go back into effect as it was prior to the BushCo attempt to wield it as a blunt intrument against our entire industry. We were living with it before and we'll end up living with it in some form after.

    What it will be, eventually, as it has been in the past, is the law of the land, which cannot be lightly disobeyed, even if prosecution is unlikely. Either you're presenting material to the public in a lawful manner or you're not. Once 2257 is back in force, producers will be on the right side of it or the wrong side of it.

    Porn producers, even if they were the monsters their critics make them out to be, have an economic incentive, as Jensen told me, to avoid breaking the law. It's interesting that Dr. Jensen and his friends at TPoP and SPC, seemingly free of such incentives, have thus far chosen to act in a reckless and destructive manner that porn producers have not. While the former, concerned with the eventual outcome of the appeals process, have labored mightily to be in compliance with what their attorneys' have interpreted to be 2257's stipulations, porn bashers have suffered no such qualms and taken no such precautions.

    Perhaps now they'll think better of that, or face the not unimaginable choice to engage in knowing civil disobedience with all its consequences or stop hiding behind the skirts of an industry they clearly despise.

    You can bet your last arcade token that if porn producers find themselves the targets of ongoing harrassment as a result of this ill-conceived legislation, the issue of selective enforcement will not go unmentioned.