TPoP L.A. Return by Invitation Only

Well, it turned out pretty much like I called it. Today Nina made voice contact with the indivdual at U.S.C. here in Los Angeles who is coordinating the 2/26 showing of The Price of Pleasure and was told that this showing would be for "faculty, staff and students only" and thus closed to the general public. The voice on the phone declined to divulge the physical location at which the screening would take place.

Clearly, there are some people Professors Sun and Jensen and their cronies don't want to meet face to face. I'm shocked, shocked I say! After they've shown such ethical regard for the rights and concerns of those who appear in their masterpiece of documentary objectivity, I'm positively gob-smacked that they would go into hiding at the prospect of encountering these individuals in person. How could this be?

Are the makers of this film, as it turns out, cowards as well as liars? If not, why their reluctance to have it widely seen in the very locus of the industry it claims to expose? One would think this would be the venue in which the producers would want to make their case the most fervently. They were certainly nervy enough when it came to trucking their cameras around the floor of the AEE in Vegas, hounding performers who were trying to work and promising to tell their side of the story. Of course, in that situation, it was the producers who were asking the questions.

Clearlly, when they're the ones whose actions are being "questioned" and "examined," well, that's quite a different matter.

Anyone who believes in his or her creative work stands behind it, even in the face resistance. What does it say about the motives, methods and character of these flimmakers that they batten down the hatches merely at the prospect of being confronted by a handful of angry women in the same age group as the invited students who feel they were exploited and misused in the making of this project?

Nothing good. In trying to shame all of us, they seem to have been more effective at shaming themselves, both in the content of their cinematic smear-job and in the behavior they've exhbited while trying to ensure it's viewed only by those already sympathetic to its one-note message.

Now at the SmackChron: A Two-Parter On The Violet Blue vs. AVN Smackfest on Interracial Porn

Starring Violet Blue (both of them), AVN, Madison Young, Sinnamon Love, a debate about racial stereotyping in interracial films.....and a genuine asshat named David Sullivan.

The SmackDog Chronicles: Violet Blue vs. AVN: The Great IR Porn Smackdown (Parts One and Two)

UPDATE (2-24-09): In the interest of accuracy and of having the full story out there, I've added a post in addedum detailing some details in the Violet Blue ID case (between the sex columnist and the porn star whom once used that namesake). I made no judgments there; I will simply leave that up to you, the reader....but it does paint a different and interesting (and at times, disturbing) light on the subject.

The SmackDog Chronicles: The Violet Blue Controversy: An Addedum

A Hearty Endorsement of "Carnal Nation"

It's always good to have more allies in the Sex Wars, and today, I've discovered a new journal dedicated to promoting the pro-sex/sex-positive viewpoint.

Actually, the blog Carnal Nation has been at it for more than a month now, but it is already doing significant work in its stated mission to improve the quality of debate about human sexuality. Quoting their mission statement.

CARNALNATION provides comprehensive coverage of entertainment for grown-ups. We at CARNALNATION embrace and honor human sexuality, and we promise to be current, consistent, and uncensored. We compile event listings; we publish original and incisive content; and we provide insightful commentary on a range of related topics from health to fashion to the latest toys. We know you take your fun as seriously as we do, so we invite you, our readers, to use CARNALNATION to realize and explore your interests, desires, and curiosities.

CARNALNATION was developed out of a compelling need to counteract those oppressive forces, whether internal or external, that stifle sexual growth, awareness, and fulfillment. We believe that sex is a vital human need and that sexuality is an important component of who we are as individuals, how we relate to each other, and who we want to become. In our view, fear and disdain of all things sexual have led to a society that too often vacillates between impulsive titillation and compulsive repression. Such extremes can only have a negative impact on our physical, psychological, and social well being. Therefore, we strive to inform and entertain without being pornographic or offensive. We make this commitment at all levels of sexuality: the personal, the political, and the perverted.

If the featured columnists and articles are of any indication, then they certainly have succeeded in fulfilling that commitment.

Editor Chris Hall (also co-founder, along with the equally wonderful Elizabeth Wood, of the related pro-sex site Sex in the Public Square) has arrayed an all-star cast of liberationist columnists....and the depth and breadth of quality of commentary is fascinating to say the least. A sampling based on issues recently debated here in this journal:

1) Chris Hall's follow up on The Price of Pleasure and its issues with "fair use" doctrine, in synch with comments here by both Ernest and Trinity:

The record-keeping requirements have been around for a while, but standards of enforcement have become even more arcane and inflexible in the last few years. Especially troublesome has been the law's requirement that records of the performers' ages be kept not only by the original producer, but by anyone redistributing the images. In October, Ernest Greene wrote an extensive four-part deconstruction of the film's content and Sun's ethical and legal obligations regarding the performers and 2257 records (Part 1, 2, 3, 4). Sun and her supporters claim that the film is protected by "fair use." Even the sex-positive bloggers haven't been united on whether Sun's film is fair use or not, which make the most recent entry in the debate even more interesting. Harper Jean Tobin at Polymorphous Perversity has a very precise and thoughtful legal analysis of the issues involved. Her conclusion? The Price of Pleasure can't claim "fair use" protections because fair use and 2257 apply to two entirely different sections of law. The former has to do with protecting the intellectual property rights of the original work's creator; the latter are federal regulations to prevent criminal exploitation of minors. Whether Sun (or anyone else) should be able to use those images is an entirely different matter that speaks to the nature of the impact that 2257 has on free speech.

2) Dr. Carol Queen (through her Live Nude Woman column) discusses the etiology of the philosophy of "sex-positivity", and defends the use of the term as it relates to defining her base sexual liberationist philosophy (in lieu of criticism from others):

So let me tell you what I think sex-positivity is now, lest I’ve given you the impression you have to start turning tricks to do it right. You don’t have to be bisexual (or trisexual), kinky, non-monogamous, or even sexually active. In fact, some of the most interesting discussions about sex-positivity I’ve had this year have been with a guy who’s busy organizing asexuals into a community of support and affiliation. Yep, you can even be sex-positive if you don’t ever want to have sex, just as you can be very sex-negative indeed and still have plenty of hot sex that you enjoy to the fullest.

Here’s the deal: Sex positivity means you acknowledge that sex is, or could be under the right circumstances, a positive, healthy force in anyone’s life… even if it isn’t right now. Those circumstances may not be the same for everyone (though some may be universal, like consent), but they include things like access to information, support, condoms (if relevant), a loving (or at least friendly) partner, healing from past negative sexual experiences like rape or abuse, privacy, enhanced self-esteem, etc. This list could be very long and, again, it won’t contain the same exact elements for everyone. This leads to the rest of what sex-positivity is, namely, the acknowledgement that not everyone’s sexuality, including sexual needs and desires, is the same, such that one person’s optimum, positive sexuality may not look anything like another person’s. That is, sex-positivity includes the acceptance of sexual diversity, and acknowledges that optimum sexual wellbeing for you might look different than it does for me.

3) Dr. Betty Dodson and Carlin Ross team up for a discussion on the uses and abuses of porn, via a videocast recorded through their site through YouTube. (original video here)

Other interesting articles include Chris' discovery of a proposed Chinese program for seeking out and screening adult material; Kingfish's article on the recent revival of burlesque; and a joint response to an inquiry about talking personally about kinky sex.

All in all, Carnal Nation is a welcome addition to the "sex positive" discussion, which I wholeheartedly recommend to all sexual freedom fighters.

BREAKING: 2257 Regs Upheld by US Sixth Appealate Court

This news just went over XBiz.com..I 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.

TPoP: No, it's not fair use

An in-depth examination of the legal question of whether The Price of Pleasure's use of content from pornography is "fair use," or whether it violates 2257, from Harper Jean at Polymorphous Perversity.

The core of the law, 18 USC 2257, is this:

Whoever produces any ...film [or other media] which contains one or more visual depictions ...of actual sexually explicit conduct...shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

Seems pretty straightforward. And the definition of "produce" in the law is very broad indeed. It includes:

digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct...

This clearly covers "secondary producers" who repackage content originally created by others - including documentary filmmakers. I therefore think it's reasonably clear that 2257's recordkeeping duties extend to the makers of a film like The Price of Pleasure.

"Fair use" does not apply to 2257. I have encountered three arguments to the effect that 2257 does not extend to this film. The first is that the film constitutes a "fair use" of the explicit images that is permitted by law. This is something of a non sequitir, since the "fair use" defense applies only to the law of intellectual property - as reflected by the fact that the film begins with a "Fair Use Notice" that references the US Copyright Act, and not 2257. It is fine so far as it goes - the makers of The Price of Pleasure should be safe from an infringement suit by the pornographers whose work they excerpt - but is irrelevant to 2257. Nor is there reason to expect that courts would impose a "fair use" exception to 2257 based on the First Amendment, since the fair use doctrine was developed to balance the competing interests that arise in IP disputes; the court has never referred to it in discussing the regulation of child pornography, which is the basis for 2257.

Is there an "obscured genitals" exception? A second argument is that 2257 does not apply because the documentary digitally obscures the naughty bits of performers in the various porn films it excerpts, thus rendering it no longer "sexually explicit." This argument has a superficial appeal, but doesn't seem to comport with the relevant statutory definition, which is:

“sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

18 USC 2256(2)(a). Notably, the law contains another, different definition of sexually explicit conduct that applies where minors are involved - and that definition specifically employs the word graphic, defined to mean that "a viewer can observe any part of the genitals or pubic area of any depicted person ...during any part of the time that the sexually explicit conduct is being depicted." This is a broad definition of graphic, but presumably would exclude consistent obscuring of the genitals. It is significant, therefore, that the term graphic is not employed in the definition that pertains to material not involving minors. I think it is relatively plain, therefore, that the term sexually explicit conduct (as applied to material involving only adults) includes depictions that are partially blurred. Sexual intercourse or masturbation is still sexual intercourse or masturbation.

....Is there an educational exception? A final argument is that The Price of Pleasure is exempt because it is an educational film. This is based on the language of federal regulations, which state:

Sell, distribute, redistribute, and re-release refer to commercial distribution ...but does not refer to noncommercial or educational distribution of such matter, including transfers conducted by bona fide lending libraries, museums, schools, or educational organizations.

28 CFR Part 75(d).

At first glance, this might seem to create a broad exception for educational materials. But it doesn't, for a couple of reasons. Let's assume that the distributor of this film is in fact a "bona fide...educational organization" - it is in fact distributed by the Media Education Foundation, apparently an educational non-profit. And let's also assume that educational distribution here can include charging a fee, i.e., selling, while still falling into the exception - the "noncommercial or" would seem to suggest as much. That means the film is not covered by 2257(f)(4), which criminalizes the sale or distribution of covered material without a 2257 compliance notice (stating where age verification records are stored, etc.) And, let's assume that the regulation itself is reasonable and valid, even though a federal appeals court has stated that under the statute itself, "The plain text and definitions of the terms used admit of no commercial limitation on who will be considered producers." (This from a panel of the Sixth Circuit, which went on to hold 2257 unconstitutional in at least some sitautions. The decision has been vacated for rehearing by the full Sixth Circuit. For more on the case, see this article.)

So far, so good. But there is no textual basis for this regulatory exception to apply to 2257(f)(1) through (3), which make it a crime to produce covered material that later gets sold without including compliance notices and actually creating and maintaining accurate records. In other words, the exception seems to mean that the distributor, MEF, is in the clear - but it doesn't seem to be of any help to the filmmakers, who would still violate the law by failing to create and maintain records, and to include compliance notices.

Personally, I have problems with some of the broad wording of 2257 myself (as does Harper Jean herself.) And I do sometimes think breaking bad laws is justified.

However, I'm not at all convinced this is one of them. Even if it is, though, assuming for a second that TPoP is correct and exposing the horrors of a woman-destroying industry, and much needed:

Wouldn't the noble thing to do be to proudly admit to your civil disobedience and assert that it is important enough to do anyway, rather than to slimily insist that what you're doing counts as fair use? Or at the very least to argue vehemently that it should count as fair use (I'm not sure I disagree), rather than sloppily asserting that it already does?

TPop Returns to L.A. – The Dance Begins Again

Well, well. It would appear that the TPoP gang has started playing cat-and-mouse with their upcoming L.A. screening. I'm so surprised.

When they originally posted notice of this screening, the included this information:

Los Angeles, CA
02.26.09, Thursday
7 pm
University of Southern California
Women's Student Assembly
kristen.priddy@gmail.com
626.487.4171

If you go to their site now, they're just a bit less informative. All they have to say about it is:

Los Angeles, CA
02.26.09, Thursday
7 pm
University of Southern California

Not too helpful if you're not in the circle of invited guests. I wonder why they made this change. Could it be they hope to limit outside participation? Nah. Based on the way they danced us around last time, then blamed U.S.C. for it, I'm sure they wouldn't do anything to try and control the turnout on this visit.

Nevertheless, if they're going to show this thing on the U.S.C campus, we'll find out where and post the information here, as well as making sure it reaches those in the porn industry defamed by this piece of trash in plenty of time to make sure we're represented. As of now, at least three of the performers slammed by this picture plan to attend.

We'll find out if the previously posted contact information is still good and let you know.

ALERT: Obama's "Pro-Porn" DOJ Nominee

(Hattip to the Good Vibrations blog, The Perverted Negress, and Reason magazine's Hit and Run blog.)

The last time we blogged about Obama's DOJ appointments and free speech implications, it was concerning the new president's disappointing choice of Eric Holder for Attorney General. However, there seems to be somewhat better news afoot in Obama's choice of Deputy Attorney General, David W. Ogden.

If this name doesn't ring a bell, its probably because, like many in this part of the blogosphere, you don't follow right-wing media sources, who are all in a tizzy right now over his nomination. He has largely not garnered much mention in the mainstream media, either. Among the more notable source gunning for him are "morality" wingnuts like Fidelis.org, Judith Reismann, Focus on the Family, and the American Family Association. The source of their ire is Ogden's "pro-porn", "pro-abortion, and "pro-homosexual" stances. And it appears, there's some basis for the "pro-porn" (or, at least, pro-free speech) label, as Ogden has, while in private practice, represented porn companies like Playboy and Penthouse, and earlier, while a clerk for liberal SC Justice Harry Blackmun, authored several memos denouncing "moral majority types" and their attacks on free speech. He is also on record as having opposed expanded 2257 legislation, for which some of the usual suspects are branding him "pro-child pornography". Patrick Trueman, a religious right activist and the Bush Administration's cherry-picked anti-obscenity prosecutor, calls Ogden "everything the pro-family movement has fought against".

If a lot of this sounds too good to be true from our side of the political fence, it very well may be. During his confirmation hearing before the Senate Judiciary, he backpeddled quite a bit on his prior positions, stating that the legal opinions he wrote while defending porn companies were those of a hired gun and not indicative of what his stances might be while working for the government. And his earlier denouncement of "moral majority types" he apologized for as youthful "immaturity", though whether he was backpeddling on his opinions or simply his rhetoric is not clear from the news sources I've seen.

Still, given the current political client, I think Ogden is the best we're going to get and hopefully somebody with the political will to maintain strong free speech protections in a political atmosphere where such rights are under attack from both the far right and some sections of liberalism and the left.

Like many sources in the free speech blogosphere, I feel like I've really dropped the ball with this story. The usual suspects on the moralist Right have been stepping up their political machine against this guy for months, and this is the first time I've ever heard of him. (Note to self – follow Religious Right sources more closely, even if radfem chest-beating seems more immediate and in-your-face.) He had a confirmation hearing before the Senate Judiciary Committee last week, and I'm unclear as to whether he still needs to be confirmed before the full Senate or what are the other steps to confirmation. But I think the Good Vibes blog had the right idea in that its really a good time to contact your Senators with letters of support for this nominee, and point out that you support free speech and sexual autonomy and you vote. The other side is definitely active on this – don't let them create the impression that they speak for the entire public.

Stormy Daniels May Run For US Senate From Louisiana: Our Cicciolina, Finally???

The news has been buzzing today about the speculation that porn starlet Stormy Daniels may decide to take a run at the Louisiana US Senate seat currently held by Diaper David Vitter (the one who got busted being on the client list of DC Madam Deborah Palfrey).

Being a Louisiana native and resident as well as being a sexual and social progressive, I'm routing for her to succeed, or at least dust Vitter enough so that he gets booted in the general election.

But...the notion that an actual porn starlet could even have the slightest chance of occupying one of the highest political seats in the land does have its merits and opportunities.

The closest we have come has been Mary Carey's abortive run for the governorship of California, which was more of a publicity stunt than anything else and really didn't have much of a chance.

Daniels' run, however, has strong backing from the grassroots, and in recent interviews given, Stormy has hinted that she is deadly serious about going after Vitter, especially for his sexual hypocrisy.

This could get...well, interesting, to say the least.

Note: I've posted a much more in depth introspective on Stormy Daniels over at the SmackChron.

Some Hot Air from the Windy City

One of the favorite anti-porn radical feminist talking points is that porn and porn culture represent the "status quo" and that the radical feminist movement is marginalized and without political power. The counter-examples, of course, are legion, ranging from Dworkin and MacKinnon's role in the Meese Commission hearings to present-day radical feminist-inspired legislation against prostitution and pornography in places like Sweden and the UK.

The latest example comes in the form of a press release from DePaul University College of Law, advertising their upcoming "Valentine’s Day Distinguished Family Violence Lecture" (you really can't make this stuff up), which features an appearance by everybody's favorite sensitive radical feminst guy, Robert Jensen, appearing along with the sheriff of Cook County, Illinois (Chicago and environs), Tom Dart, who will be speaking on "pornography's impact on crime":

Dart will explore pornography’s impact in key areas, including crime, and highlight recent initiatives designed to address sex trafficking in Cook County.

Dart is described on his website as a "rising star in Illinois politics" (not exactly something to brag about these days) and a former legislator turned law-enforcement official. Among his accomplishments as sheriff:

Under Dart’s directive, the Sheriff’s Police have initiated a variety of stings, crackdowns, and investigations of criminal activity. He has been in the forefront in breaking up dog fighting rings and presided over the arrests of prostitution rings that use the internet as their advertising arm.

The press release also adds that Dart will be leading an "all-male panel" following Jensen's lecture. For the most part, this is the same-old same-old, hearkening back to the days when crusaders in law enforcement, clergy, and the upright men of the city met about stamping out vice. What's different, is that now the role of clergy is played by a radical feminist man with pretensions of being "prophetic".

Pornographers as the "status quo"? Show me an example where somebody from the porn industry is having a similar meeting of minds with politicians or law enforcement officials and maybe I'll entertain the idea. Until then, I think those of us in the reality-based community will tend to believe otherwise.

Oh...A Favor to ask our Fearless Henchleader....

Hey, Ren...if you have the time, could you update the link for the SmackChron that's located in the blogroll here? It's still linking to the old 2.3 rather than the present 2.6 version of the blog.

Here's the correct addy:

http://ajkenn-rgclub.com/SDChronBlog2dot5/index.php


Also....could you also add the addy for the Lady C Boudoir blog to the Blogroll as well??

http://theladychatterleyboudoir.blogspot.com/


Sure would appreciate 'ya more than I already do....okthanxcyabuhbyefornow.