Friday, July 19, 2013

2257 Regulations Mostly Upheld By Federal Court Ruling, Save For Private Home Inspections: The Aftermath

I can't say that this wasn't really unexpected, given the political and social climate.

US District Court Judge Michael Baylson issued his long awaited ruling yesterday regarding US Statute Code 2257 and 2257A, the regulations which required performers of sexually explicit media to provide manditory age verification and other information to law enforcement for federal inspectors on request.

Essentially, the law was upheld on all conditions except for one: inspections at private residences of performers without prior notice were held to be unconstitutional abridgments of the Fourth Amendment. The remainder of the regs, however, were upheld and found to be justified on the basic of "public safety" overwhelming any "right of privacy".

Basically, Judge Baylson took the position that fighting child porn and preventing underage children from being "exploited" outweighs any invasion of privacy that the regulations had on legal adult performers. In short, the ends justify the means.

I won't go into the heart of the decision here, since both and AVN have their own excellent analysis (and pay particular attention to Mark Kernes' righteous critique of Baylson's ruling over at AVN), but there is a dangerous precedent being established here regarding regulation of sexual speech.

If Baylson's ruling is upheld on appeal, this would give censorship forces a new weapon to use against companies which offer their media outlets for legally protected adult sexual content. I can already see Gail Dines, Dawn Hawkins, and the anti- "sex trafficking" lobby licking their chops at the thought of using the threat of 2257 inspections to drive porn producers and performers into bankruptcy or drive them out through death by paperwork asphyxiation.

Not to mention, the ease of personal and private information about performer's real identities being accessible to potential stalkers and blackmailers (remember the original Porn Wikileaks scam got most their information they used to gaybait and slander performers through 2257 documents), and the requirement that even "secondary producers" (such as adult webmasters trading videos and pictures for their paid sites) must have such information available upon request or face random raids from the Feds or face possible sanctions or even jail terms for "child porn" production.

And if you think that even your free blog can't be potentially affected by this..well, think again, because given the decision yesterday by Tumblr to modify their policies regarding sexually explicit content to be more in line with the consensus (porn can stay, as long as it is hidden deep in the lower basement beyond reach and not searchable, and marked with a scarlet letter "X" for easy recognition and stigma), it's not a long shot to say that the major media companies could easily go further and simply erase all sexual content further down the road. 2257 can easily be used by the Feds as a wedge to force Yahoo or Google to impose sexual censorship without actually pulling a site or a blog; simply requiring a blogger to have the necessary papers for that porn pic (s)he uploaded to her blog would be more than enough.

Bottom line here: that in 2013 a performer such as Kylie Ireland or Nina Hartley or Vicky Vette must provide paperwork everytime they upload a video to their pay sites verifying that they are not under 18, and that they must prove that they don't perform with underage performers every single time they take a picture or film a scene...even though there are already laws against child porn and sexual abuse of children in the first place??  Seems like the adult media industry could learn some lessons from the Black community about assumed guilt and collective punishment...and permanent stigma.


  1. This didn't come as a surprise to me either only because of the (again) missed opportunities to produce a different outcome. The compelling First Amendment issues at the core of the plaintiffs' case got scant attention from the judge as they seemed to from the plaintiff's attorneys. Shades of the ill-starred anti-Measure B campaign.
    While no weight was given to the credible experts for the plaintiffs, crackpot Gail Dines and her bullshit about "performers who resemble minors" (not an issue 2257 even addresses), the plaintiff's lawyers missed out on a kill-shot by not confronting her with her credited participation in both The Stop Porn Culture slide show and The Price of Pleasure.
    The plaintiff's counsel should have asked the judge to Mirandize Dines before asking if she was aware that both productions were non-compliant with 2257 in more than 50 images each. Whether she would have taken The Fifth or claimed not to know, the door would still have been open to ask her if either presentation COULD have been made in compliance with federal law.
    The answer, of course, is "no" even if she found some way to avoid using the word. And if 2257 makes it impossible to legally produce and anti-porn documentary, how is it not a prior restraint on protected speech?
    But nobody got to that argument because they were busy whining about the expense and difficulty of maintaining the records.
    Earth to FSC: Those arguments don't work anymore. Get back to the core issue embodied in your name and quite playing from Carl Rove's book.

  2. Sorry for all those typos. Must remember not to post with smoke pouring out of my ears. It clouds the vision.