2257 Update: Could The Free Speech Coalition Have Made A Better Case?? J. D. Obenberger Thinks So.

It was Ernest Greene's comment to the previous post on Dist. Judge Michael Baylson's ruling upholding the 2257 regs that got me thinking that perhaps the Free Speech Coalition might not be offering the best case to be made against these regulations.

And now, I see that Ernest is hardly alone in that assessment.

Today, attorney J. D. Obenberger, who specializes in defending adult businesses and adult content and who operates an excellent legal blog (XXXLaw.com) on adult entertainment issues, posted an article over at XBiz.com providing his own assessment on Baylson's ruling last week. It's detailed and a long read, but it cuts to the heart of the major issues involved in the 2257 case.

Obenberger's main thesis parallels Ernest's comment in that he is respectfully critical of the approach of the lawyers representing the Free Speech Coalition, who was the main plantiffs in the legal action. Their main impetus was to attack the 2257/2257A regulations as an excessive burden for adult commerce due to the paperwork and legal hoops of obtaining the required records, and to emphasize the burden of having legal performers over the age of 18 being required to maintain for open access to legal authorities detailed and intimate information that could be used against them.

Obenberger sees this approach as counterproductive, because it allowed Judge Baylson to defend the regs using the time honored "Those damn pornographers just don't want to work hard enough to protect children from kiddie porn!!!" card.

I don't think that's an honest appraisal of what happened – and if the real issues were really set out, Americans would be outraged. None of the huffing and puffing of the commercial producers of porn about how much time and money Section 2257 compliance costs them – or its comparison with the amount of child pornography that exists – will ever carry the day in any courtroom to invalidate Section 2257, because to the courts of law (and in the values of the American people) the burdens imposed on commercial pornographers, even enormous burdens, are appropriate and constitutionally permissible if they will deter or prevent even a few children from performing in sexually explicit works.

In other words, having your personal, private sex business exposed to trolls and stalkers is the worthy price of "protecting" even one underage child from getting caught up in porn. Even if child porn is already illegal. Even if it's the underaged preadult who initiates the act against the will of the industry (see Traci Lords). The only reason, this logic goes, that the "pornographers" even complain is because they are simply lazy greedheads at best....and active sex-trafficking pedophiles at worse. They should be lucky to even be allowed to even exist, since at least 2257 gives them that right...we could just banish them outright. Think of the children, damn it!!

Where this goes off the rails, Obenberger says, is that there is an alternate approach that could have been taken by attorneys opposed to the regs, which could be far more effective in winning over both the legal and moral high ground. And, it might even have the support of the very appelate court that kicked the regs back to Baylson to begin with. (Italicized emphasis in original quote; bolded emphasis added by moi)

In Philadelphia, in the cradle of our constitutional liberty, three judges of the Third Circuit laid out a path for the total demolition of Section 2257 on another ground, far more important to Americans, when they reversed Judge Balyson and remanded the case to him on April 16, 2012. They telegraphed a message that a statute that invaded the important privacy rights of ordinary Americans in their own homes went far too far and could not stand.

Section 2257 is important to ordinary Americans because it assaults the most private intimacies of human beings and the records of those intimacies in the most protected of places, inside shoeboxes and on cameras in closets of American bedrooms throughout the country. It forces Americans to show recordings of those intimate moments to men with badges, on demand, under penalty of five years imprisonment, as if the Bill of Rights did not exist. In the era of Edward Snowden and Bradley Manning and Julian Assange, and after disclosures about the regularity with which our license plates are tracked wherever we drive and about the interception and retention of our email and phone calls by the NSA and CIA and agencies we've never heard about, the intrusion authorized to the government under Section 2257 just might be the kind of straw that breaks the camel's back to precipitate a broad rethinking of the government's wholesale invasion of the most personal privacies, just as Watergate and the burglary of Daniel Ellsberg's psychiatrist's office was in the early 1970s. The government's claim of right to view the private sex videos of ordinary Americans is the personal and emotional kind of issue that can jump-start participatory democracy and spark strong and effective popular demands for broad social change.

 Now, you would think that 2257/2257A only dealt with age verification, and that only records showing proof of legal age and identity were required for adequate approval. However, even exposing the real identities and locations/addresses of performers, directors, and producers of sexual content can carry a real risk of inadvertent exposure of personal, private information that could be used in an inappropriate, or even physically damaging, fashion. What is to say that it wasn't 2257 documents that allowed for the original Porn Wikileaks (before it was transformed by Sean Tompkins into the safer and "kinder" adult portal as we know it today) to gay bait and smear performers?

Obenberger also goes deep into Judge Baylson's decision, pointing out how he attempts to parse the original Third Appellate Court decision in such a way to defend the regulations, in spite of the directions given him by the higher court. Essentially, Baylson takes all of the Department of Justice's arguments to his heart, and simply dismisses out of sight and out of mind the objections and concerns of the defendants...mostly by downplaying the potential impact of the regulations on non-commercial sexual speech.

To this end, Obenberger offers a detailed, five-part breakdown of Baylson's ruling, and then thusly summarizes:

This five-level attack is engineered to evade and escape the conclusion of his reviewing court that finds this statute to apply to private, noncommercial persons, leaving open only the question of whether its application is "substantial," that is numerically frequent enough in comparison with legitimate applications of the statute. Judge Baylson [first] tells the Third Circuit that they are wrong on the law, and then articulating that he is following their determination of law, he applies an unusually high barrier of proof in consideration of the issue at hand - he finds an inadequacy of proof, and he then asserts three further lines of defense that appear to this observer to be variously disconnected from the actual issues at bar, a misstatement of constitutional law, and a repackaging of the Government's argument that because it does not intend to apply the law, its constitutionality cannot be reviewed by a court.

By these means, he assassinates the most vital danger to Section 2257, as I see it, its effect on ordinary Americans. With their constitutional corpses disposed of as unimportant matters in the determination of this cause, he then treats the statute as though it were largely just any other scheme of regulation for an industry traditionally subject to close regulation. The absurdity of that proposition is beyond the scope of this article. In the end, he dismisses almost every argument that the industry could make for itself - and hoisting a flag up the pole that in this kind of case, dealing with real people and the protection of real children, the court will take off its glasses and not look very closely at how many constitutional protections are grievously offended. After all, it's just pornographers that he's dealing with now, after the deft application of his scalpel, and their rights appear minimal to him.

If the line of argument by Baylson sounds familiar to BPPA readers, it's because it sounds like the exact same arguments put forth by the AIDS Healthcare Foundation in regards to the condom mandate for porn performers as opposed to mandating condoms for the general population. Maybe the industry should be lucky Baylson presides in Philadelphia and not Los Angeles or San Francisco.

But, to say that these regs don't have the possibility of a huge impact on non-commercial sexual speech is a major reach...and the recent controversies over social media throttling of adult sexual speech and commerce over the Internet should cast a real light over the potential firestorms that could develop. Baylson may have the liberty or the naivete to say that since the government hasn't applied 2257 in 5 years, people have nothing to worry about it being revived tomorrow...but that doesn't mean that there aren't active antiporn agents out there just waiting for the government to fire that weapon in the future.

The most hilarious and head-shaking irony of Baylson's "limited" ruling is that none other than Gail Dines was one of the principal witnesses for the defense of 2257....although even that didn't stop her and her antiporn associates from numerous violations of that reg in the production of their epic documentary The Price of Pleasure. (Though, I'm guessing that Dines would simply cite "Fair Use" and the notion that her theft of porn content for the purpose of condemning its producers and user iwas justified under "educating the masses" about the alleged "harms" of porn and BDSM. Riiiiiight.) The point is, though, Dines would probably have no problem with the government reviving 2257 as a joint effort to not only bust the primary producers of commercial porn, but also the "secondary producers" who repost their content on their own private blogs or websites.

And that's where the virtual F5 tornado hits the pig farm... because if you think that the recent actions of Yahoo!/tumblr, Blogger, and WordPress cracking down on adult blogs for their affiliate linkage and explicit pics is intrusive and invasive enough, then what would you say about Yahoo! and Google reacting to getting bombed by government agencies propelled by antiporn/anti-"sex trafficking"/child protection groups calling for more direct censorship of sexual content on the Internet? Imagine the firestorm that would ensue if, say, Tumblr was to announce that they would be requiring all their adult blogs to provide official 2257 information for all the naughty stolen....errrrrrr, shared pics deposited there? Or, if tube site uploaders were required to have 2257 info at the ready before they uploaded their vids to xHamster or Xvideos or Pornhub or whatever tube site service they used? Get the picture??

Since "opt-in" type ISP censorship like what's being proposed in Great Britain probably isn't going to fly too well here, and more direct "obscenity" prosecution (save for any jurisdiction within Polk County, Florida) is probably not going to happen for at least the next 2, if not 10 years, it may be that drowning adult content providers to death via excessive paperwork and verification would be the default means for the censors to meet their goals here in the US. All it would take is one state Attorney General to do what they successfully did against Backpage and Craigslist ads by shaking down Internet providers like Yahoo! and Google to impose the same 2257 verification requirements on all bloggers/website owners who produce or share sexually explicit content, under threat of prosecution under "child porn" or even "child exploitation" laws. Between that and Apple's exploitation of its monopoly status in mobile apps to freeze out adult sexual content, you can literally wipe out sexual content overnight.

This is why Obenberger's article is more than worth the time to read...and to react.