Below is my original draft article, sans footnotes published in substantially edited form here.
Attorney Alan R. Levy recently published an article entitled:”How”Swingers”Might Save Hollywood from a Federal Pornography Statute.”So eager was Levy to”save Hollywood”from having to keep records to verify that performers engaging in actual sexually explicit conduct are legally adults, that he grossly distorted the meaning and effect of 18 U.S.C. § 2257. Ironically, while exaggerating the negative impact of 2257, he may have simultaneously underestimated the problematic nature of a different statutory provision requiring record keeping pertaining to simulated sexual conduct, while falsely implying that it would preclude certain sorts of content.
Truths and Falsehoods About § 2257
Initially note that the record keeping requirements of § 2257 are limited to instances of”actual sexually explicit conduct.”This is defined as”sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.”And it includes actual bestiality, masturbation, sadistic or masochistic abuse, and”lascivious exhibition of the genitals or pubic area of any person.”Because the performers are engaging in actual sex, this is sometimes colloquially referred to as”hardcore”pornography, as contrasted with”softcore,”a term sometimes deployed to mean simulated sexual conduct.
Pornography in which any performer is under eighteen years of age is child pornography, and it is illegal. To facilitate enforcement of child pornography laws, Congress developed a record keeping requirement, which states in pertinent part:
Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.
Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct : ascertain, by examination of an identification document containing such information, the performer’s name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations; ascertain any name, other than the performer’s present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and record in the records required by subsection (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation.
Any person to whom subsection (a) applies shall maintain the records required by this section at his business premises, or at such other place as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times.
The names of the performers do not need to be affixed to the pornographic works to comply with § 2257. Only a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located”does. A typical compliance statement is two or three sentences long. It represents that all of the performers appearing in the work were at least 18 years of age when the photography took place, and it provides a real space address for the”custodian of records.”When considered through the prism of labor and employment laws, immigration laws, and tax laws, the idea that a contractor would have to ascertain and keep records about the people who perform in an audiovisual work hardly seems surprising or untoward. Given the goal of impeding the production and distribution of child pornography, it hardly seems onerous or unreasonable, despite the strident protestations of one pornography trade group to the contrary.
The only pornographer who has been criminally prosecuted for 18 U.S.C. § 2257 violations to date is Joe Francis, who controls the multimillion dollar Girls Gone Wild franchise, and was arrested after he repeatedly served underage girls alcohol and then filmed them engaging in sexually explicit acts. The provisions of 18 U.S.C. § 2257 seem simple enough to comply with, and Francis certainly had every ability to do so. He merely seemed to find the prospect of filming under-aged women after plying them with alcohol irresistible.
Nevertheless, pornographers have asserted that this law is an effort to drive adult entertainment sites out of business under the ruse of fighting illegal child pornography. Like Joe Francis, perhaps they too would like to use performers under the age of eighteen in their pornography. Barring this proclivity, the claim that the right to engage in commercial distribution of pornography in which the performers are completely anonymous is more important than a record keeping requirement that facilitates identification of child pornography seems overblown. Yet it has been advanced by the libertarian advocacy group EFF, which helped pornographers successfully challenge § 2257 on freedom of speech grounds, in Connection Distributing Co. v. Keisler, 505 F.3d 545 (6th Cir. 2007) (remanding the case to the district court with instructions to find 18 U.S.C. § 2257 unconstitutionally broad and enter summary judgment for the plaintiffs)( On April 10, 2008, the 6th Circuit granted the government’s petition for en banc review and vacated the earlier decision.)
The Connection Distributing plaintiffs were described by the Sixth Circuit as people who wanted to publish sexually explicit photographs in”swingers”magazines, but neither wanted to create and maintain records required by 18 U.S.C. § 2257, nor to provide the publisher of the magazines with information that identified the people in the photographs. The government asserted that the record keeping requirements were aimed at conduct rather than speech:the pertinent conduct being child abuse. The court concluded that 18 U.S.C. § 2257 was over broad because it impermissibly impacted what the court framed as a right to speak anonymously and imposed an unconstitutional burden on pornography in which only adults appeared.
As noted above, the record keeping requirements of § 2257 apply only to anyone who”produces â€¦ materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce.”The meaning of”produces”is limited by § 2257 (h) (2) (B) (1) which states that the term”does not include activities that are limited to photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication.”It is further limited by § 2257 (h) (2) (B) (ii) and (iii), which state that”produces”does not include distribution, or”any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers.”
Thus, 18 U.S.C. § 2257 requires producers of only commercially distributed pornography featuring actual sexually explicit conduct to verify the age of every performer, to keep records about the performers’ identities, and make those records available to the government upon request. The”commercial”limitation is amplified by the associative federal regulations, which state at 28 C.F.R. § 75.1(c)(4):
Producer does not include persons whose activities relating to the visual depiction of actual sexually explicit conduct are limited to the following:
(i) Photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplicators;(ii) Mere distribution; (iii) Any activity, other than those activities identified in paragraphs (c) (1) and (2) of this section, that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers; â€¦. (d) Sell, distribute, redistribute, and re-release refer to commercial distribution of a book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, 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
A reasonable reading of § 2257, then, is that non-commercially distributed pornography does not trigger its record keeping requirements of § 2257. However, in the now vacated opinion in Connection Distributing Co. v. Keisler, some Sixth Circuit judges interpreted these provisions differently, concluding:”the record keeping provisions have an extensive reach. Records are required to be kept and disclosure statements are required to be affixed by any person who takes a photograph or films a movie depicting actual sexually explicit conduct.”
In reaching this startling conclusion, the court held that the reach of § 2257 wasn’t adequately limited to commercially produced pornography, somewhat surprisingly writing that the statutory provision”means that a married couple who videotape or photograph themselves in the bedroom engaging in sexually explicit conduct would be required to keep records, affix disclosure statements to the images, and hold their home open to agents for records inspections.”This does not seem like an accurate or supportable interpretation of the statute, and it will be interesting to see what the entire Sixth Circuit concludes en banc. In addition, there seems to be an underlying assumption by the panel that issued this questionable opinion that the”swingers”uploading or distributing commercial pornography are generally the same folks who are appearing in it. This is not necessarily the case.
There are (at least) two classes of”swingers”and others who may prefer not to comply with the record keeping requirement: those who want to distribute pictures or videos of themselves engaging in sex acts, and those who want to distribute pictures or videos of other people engaging in sex acts. One question to consider with the first group is, if they are commercially distributing pictures and videos of themselves in actual sexually explicit conduct, how much personal privacy they can reasonably expect. No law prevents anyone who recognizes them from broadcasting their names and other personal information in connection with the pornography. The Connection Distributing panel expressed concern that despite the fact that the records required by § 2257 will not necessarily be open to the public, the statute does not provide for confidentiality. That is a legitimate concern that can be fairly easily addressed, and should be. Though they are unable to prevent neighbors and co-workers from recognizing them and disclosing their real space identities, they should not have to fear this from government record inspectors.
The second group, those who wish to commercially distribute pictures of other people engaged in actual sexually explicit conduct, have an even less compelling claim. Adults appearing in the relevant pornography might be appearing in a magazine or on a web page involuntarily, because they were coerced to pose or perform, or were unaware of or opposed to having their sexually explicit photographs taken, or, though amenable to being photographer, were opposed to having the photographs published and widely distributed because they did not wish to become permanent public spectacles. The record keeping requirements of § 2257 may offer some safeguards against unwanted exposure to the subjects of these pornographic works, since they can not be legally commercially distributed without information provided by these performers.
But it is children for whom the protections of § 2257 are clearly intended. Some twelve year olds can be made up to look as though they were twenty five. Some twenty five year olds can be made up to look as though they are twelve. If a twelve year old is one of the performers, the work is child pornography. Moreover, twelve year olds cannot legally consent to sex, so any pornographic work featuring a twelve year old probably depicts sex crimes such as rape as well. The record keeping requirements of § 2257 provide law enforcement officials with the tools to uncover child pornography, while leaving pornographic works that only appear to feature child performers in distribution. Surely that is a content based distinction that the First Amendment can tolerate.
An Entirely Different (and Probably Unconstitutional) Statutory Provision (Depending Upon What the Final Regulations Implementing It Say): 18 U.S.C. § 2257A
In 2006 Congress passed, and President Bush signed, The Adam Walsh Child Protection And Safety Act Of 2006. One of its provisions promulgates a record keeping requirement for works in which the performers engage in simulated sexually explicit conduct, to be added to Title 18 as Section 2257A. Despite Levy’s representations to the contrary, § 2257A does not restrict the use of minors in performances involving simulated sex. That is the purview complicated tangle that the child pornography laws inflict. It does, however, impose record keeping requirements that will demand judgment calls apt to be fraught with uncertainly about what constitutes simulated sexually explicit conduct, whether minors are implicated or not.
The text of § 2257A is available via online databases such as Lexis, but it contains an important predicate:
Caution: For provision that this section shall not become effective until 90 days after publication of final regulations implementing it and shall not apply to any matter, or image therein, produced, in whole or in part, prior to such date, see subsec. (i)(3) below.
And indeed § 2257A (i)(3) states:”The provisions of this section shall not become effective until 90 days after the final regulations implementing this section are published in the Federal Register. The provisions of this section shall not apply to any matter, or image therein, produced, in whole or in part, prior to the effective date of this section.”The final regulations implementing 2257A have not even been drafted yet, no less published in the Federal Register.
One subpart, Section 2257A(h)(1)(A) creates an exemption for commercial enterprises that collect and maintain in the normal course of business”individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer.”It is therefore the Adam Walsh Child Protection And Safety Act Of 2006 that will potentially”save”Hollywood, rather than singers. This provision of § 2257A even expands this exemption to Section § 2257, and works featuring actual sexually explicit conduct.
It is easy to see how this exemption from both § 2257 and § 2257A record keeping requirements will mollify the most vocal and well funded and socially acceptable producers of pornography, the traditional or mainstream movie studios. It is not at all apparent that it renders § 2257A constitutional. Whether or not § 2257A violates the First Amendment is a complicated question for another day, and will depend in part on regulations that have not even been written yet, as noted above.
What is clear is that § 2257 and § 2257A are two distinct statutory provisions that are being instrumentally muddled so that any enforceability issues associated with the far more problematic 2257A fallaciously appear to apply to § 2257 as well. The true agenda of commercial pornographers who oppose § 2257 is that they don’t want to be caught or held accountable for using underage performers. Dishonest pornography industry advocates like Alan R. Levy are attempting to advance this agenda by conflating the legitimate and appropriate record keeping requirements if § 2257 with the deeply disquieting and probably unconstitutional requirements of § 2257A. They shouldn’t be allowed to get away with it, and this rebuttal of Levy’s deceptive article is one effort to see that they don’t.