Feminist Law Professors

A recent article in the Yale Law Journal Pocket Part does an insidious job of conflating a law requiring record keeping with government censorship in the context of pornography. Is the falsity intentional? The analysis certainly seems driven by a libertarian, anti-regulatory, pro-porn agenda. Written by an entertainment lawyer who may represent pornographers, and entitled “How”Swingers”Might Save Hollywood from a Federal Pornography Statute,” one couldn’t exactly expect balance, but I would have expected at least more doctrinal accuracy from the Yale Law Journal editors (but see this article, entitled: “Want Your Opinions Questioned or Reversed? Hire a Yale Clerk,” which notes: “Using a sample of 12,966 opinions written by 95 federal district court judges, the portion of a judge’s non-permanent clerks from Yale Law School is found to be positively related to the likelihood the opinion will have a negative (warning) or questioned signal, which is statistically significant at the 1% level.”)

The article’s author, Alan R. Levy, takes issue with Section 2257 of Title 18 of the U.S. Code, which requires that pornographers create and maintain records documenting the age of the performers depicted in those performances as a way to try to ensure that all of the pornography performers are 18 years of age or older. It does not make the actual sexual content of a film either lawful or unlawful, but the author sure makes that suggestion. Here is one troubling excerpt (with bolding added):

Mainstream filmmakers should be especially concerned with the language of the most recent published § 2257 regulations, in which Attorney General Alberto Gonzales wrote,”Section 2257A requires that producers of visual depictions of simulated sexually explicit conduct maintain records documenting that performers in those depictions not be minors.”Does this mean that a noted film such as Taxi Driver, in which a twelve-year-old Jodi Foster portrays a thirteen-year-old prostitute, is unlawful? What about the more recent controversial film Hounddog, which premiered at the 2007 Sundance Film Festival and portrayed twelve-year-old Dakota Fanning as a rape victim? Even a film nominated for Best Picture at the 2008 Academy Awards may be affected by § 2257A. Atonement has one scene of explicit simulated sexual conduct involving actress Juno Temple, who was seventeen years of age at the time of filming.

No, the record keeping requirement does not make movies like Taxi Driver “unlawful.” Nor does it make simulated sex scenes “unlawful.” It simply makes failing to keep the required records unlawful, as I am sure the author realizes. But he implies the law will make the referenced movies “unlawful” as a way to make the law seem far more oppressive and censorious than it actually is. Ask yourself why he would do that. He also writes:

Recently, more mainstream filmmakers have been portraying scenes of actual sexual explicit conduct in their films. As a result, even though these works could not be reasonably characterized as pornographic adult films, they are nonetheless under the scope of § 2257.

Can anyone explain to me why it is that “actual sexual explicit conduct,” as he puts it, “could not be reasonably characterized as pornographic”? Because I think it is entirely reasonable for actual sexual explicit conduct to be described as pornography. Which is legal, unless children are improperly involved, or the work is deemed “obsene,” which almost never happens. Now here is another paragraph supercopied from the article that is a complete muddle. Note that it was supercopied as is, in case it mysteriously gets edited for, ahem, “clarity” later:

Section 2257A’s opt-out provision may create another problem, since it creates a scenario whereby two protected forms of speech are being regulated differently. In the case of actual explicit content, each performer must maintain separate records for each performance and cannot opt out. Meanwhile, simulated content can opt out of this requirement merely by submitting a certification to the Attorney General. This difference makes it difficult for the government to assert that the regulations are content-neutral. A future challenge to either of the statutes could easily ask the court to apply a heightened strict scrutiny standard. By passing § 2257A into law, Congress may have given more reason for the courts to invalidate the entire statutory scheme.

Emphasis added. I don’t have time to list all of the falsities and half truths embedded in these six sentences but here are a few striking ones:

1. It is the porn producers who are required to do the record keeping, not the performers.

2. If “simulated content can opt out” (jeebus, even the grammar here is horrible!), doesn’t that tend to undermine the whole dishonest “OMG the movie Taxi Driver could be unlawful!” histrionics earlier in the piece?

3. Child pornography is illegal. Pornography featuring adult performers is not. Does that sound “content neutral” to you? The author seems to suggest this differential treatment makes laws against child pornography unconstitutional. Maybe he would like this to be the case, but I think he is very much mistaken. And for the nonlawyers reading, think about the way the FCC regulates cuss words on the airwaves, treating them differently than other words. Content neutrality principles are obviously far from absolute, as Levy no doubt knows, and the YLS student editors as well. But everyone pretends otherwise to make the record keeping law sound as questionable as possible? Why?

4. What in the world is “a heightened strict scrutiny standard” in this context?

The author of this analytic atrocity clearly has an emphatically pro-porn agenda. And he is probably not ethically prohibited from distorting the law as much as he wants in an op-ed, though that point is at least debatable. But why did the Yale Law Journal give him the forum to do so?

–Ann Bartow

Update: I’m sure you will be shocked, utterly shocked, to learn that the Yale Law Journal folks are using the porn article referenced above to market the Pocket Parts to potential readers. Woo-hoo, porn and swingers! Barf.