Fair Use, 2257, and Double Standards: A response and challenge to NoPornNorthampton

Adam Cohen of NoPornNorthampton dropped by to comment here recently. As much as I vehemently disagree with NPNH and their allies, on many levels and on many issues, I do welcome his willingness to come by and debate. I will note that this blog is always open to those critical of our position. Likewise, I challenge Adam Cohen and others in the anti-porn blogosphere to show the courage of their convictions and do the same, something they are often not open to doing.

To start out with, Adam Cohen has posted a response to Renegade Evolution's long-standing contention that the anti-porn slideshow used by Stop Porn Culture and similar material on anti-porn websites (including NPNH), which show explicit pornographic images in order to critique them, are in violation of Federal "2257" documentation laws. Cohen counters that the legislation contains a clear exemption for "noncommercial or educational distribution" of such material, basically allowing a "fair use" exemption to 2257.

(At this point, I also want to point to an excellent post on this subject by Elizabeth at Sex in the Public Square. Elizabeth also respectfully takes issue with some of Ren's contentions about fair use and 2257.)

I think a lot of this debate flounders on confusion as to what the legal status of 2257 is at this point, having been amended and greatly expanded last year, only to be struck down in the Sixth Circuit Court. So what is actually covered by 2257 at the moment is unclear.

The original version of 2257 did not have broad application to "secondary producers", however, the amended version did. The "educational" exemption that NPNH cites may very well be in effect per the original version, however, "secondary producer" provisions in the amended legislation call this into question.

Adam Cohen accuses us of trying to censor anti-porn speech. That's not the intention of any of the writers at this site (or any other sex-positive activist site that I can think of). While I can't speak for everybody here, I'm actually very against the amendments to 2257, BUT, if this is to be the law, then the law MUST apply equally to all – no special dispensation for being on the "side of the angels". One of the major objections to the "secondary producer" provisions of the 2257 amendments is the potentially harmful effect that it will have on the sex-related blogosphere, who under the provisions of these amendments, might be considered "secondary producers" of internet porn and charged accordingly if not in possession of a full compliment of 2257-related documents. But the anti-porn folks, apparently, are supposed to get a free pass to show this material without such restrictions. This is nothing less than viewpoint discrimination, plain and simple, and if the 2257 laws are enforced this way, it only compounds the already-problematic free speech implications of such legislation.

To use a specific example, one of the sites we have on our blogroll, SugarBank,* is a prime example of the kind of site that would probably be targeted as a "secondary producer" under the amended legislation. Yep, its a pro-porn site with an abundance of porn imagery found within. However, its quite clear from reading the site that the images are used as a basis for discussion and critical commentary on various pieces of pornography and about the porn industry. Certainly not the kind of discussion and critique that NPNH and the like would agree with, but that goes without saying. Should the government get the expanded 2257 regulations it wants, what do you think the likelihood that a site like SugarBank will be granted the kinds of exemption and latitude that NoPornNorthampton and Stop Porn Culture seek for themselves? Should such an enforcement pattern come to pass, I'd go so far as to say that this would provide a strong legal basis for challenging the constitutionality of these 2257 provisions, on the grounds that they legislate unconstitutional viewpoint discrimination.

And this doesn't even begin to cover laws about not taking reasonable precautions to shield minors from material that's not age-appropriate. This is something John Stagliano is facing jail time for, yet this is also something that Stop Porn Culture and NPNH don't even begin to make such an effort to do when they show explicit images. Again, if you support such laws and the reasoning behind them, then why do you hold yourself above them? A case of "do as I say, not as I do", perhaps? Nor does this even begin to cover the ethical implications of using images of porn performers as poster children for a kind of anti-porn politics that, odds are, the performers in the images would not even remotely support if asked.

So, Adam, since you apparently have an interest in all this, and since you've posted explicit images on the NPNH site yourself on a few occasions, care to join me in opposing the expansion of 2257 to secondary producers, or at least support a broad exemption for ALL fair use and critical commentary of porn? Even sources that are highly favorable to the images in question? If not, I call hypocrisy on that!


* As an aside, let me once again give my highest recommendation to SugarBank and its proprietor, Sam Sugar – it you haven't checked out this site, you definitely should!