USA: Porn for over 18s-CMLP

March 31, 2010

Calling Out Former Porn Stars? Beware of ’2257 Regs’

Justin Silverman

Citizen Media Law Project: March 24, 2010

Celebrity blogger Perez Hilton made a career for himself by taking shots at the Hollywood elite and celebs du jour. With his trademark “doodles,” he calls out gossip mag mainstays such as Sandra Bullock beau Jesse James (“Douche!”) and Jon Gosselin (“What am I doing with my life?”). Hilton also publicly outs gay celebrities (“If you know something to be a fact, why not report it?”), and as of last week he upped his game by exposing secret porn pasts as well.

Chuy Bravo, the sidekick of Chelsea Handler on her late-night talk show, “Chelsea Lately,” became the victim of such an outing when Hilton identified him (sexual content) as “an official porn star.” As evidence, Hilton posted the explicit cover to the movie “Chuy Then And Lately” and a video featuring what appears to be the little man readying for a role as a lifeguard in the clip, “Momo Gets Midget Dick.” The video is now attracting attention not because of Bravo’s prior pastime, but because it appears Hilton posted it in violation of federal pornography regulations.

As Tom Hymes of Adult Video News quickly pointed out (sexual content): “As thoughtless as posting the porn may be, considering his site is a magnet for teens, Hilton also neglected to abide by 2257 federal labeling requirements, and possibly the record-keeping requirements as well, an oversight that could in a worst-case scenario net him five years in the pokey.”

Hymes is referring to 18 U.S.C. § 2257, a product of the Child Protection and Obscenity Enforcement Act of 1988. The statute and DOJ regulations issued under it—”2257 Regulations”—are meant to prevent child pornography. They require all porn producers to verify the age of their performers, keep records on those performers, and attach a compliance statement to all material or websites featuring those performers stating where the records can be found. Unlike the copyright and defamation laws Hilton has faced in the past, failure to abide by these regulations can warrant jail time. Though it’s not likely any charges will be pursued against Hilton, his potential predicament is an example of how media outlets and journalists could be ensnared by the controversial law.

Section 2257 applies to not only “primary producers” of pornography, but also “secondary producers” who republish that porn or feature it on websites. That’s where Hilton may have exposed himself to liability. He posted the video without a compliance statement (example) or without, presumably, verifying the age of those in the video. Though the wording of § 2257 may imply that it applies only to commercial pornographers, it doesn’t explicitly exclude those who republish porn for journalistic, educational, or political purposes. Only under one of three definitions for “producer” is commercial intent required. See § 2257(h)(2)(A)(ii). That leaves anyone inserting so much as a single image of sexually explicit conduct on a webpage vulnerable to prosecution. See § 2257(h)(2)(A)(iii).

Further stoking First Amendment concerns is the U.S. Department of Justice’s insistence that this means of preventing child pornography outweighs any incidental burden on protected speech. It’s a position now being challenged in Free Speech Coalition v. Holder, a case in which Hymes is a co-plaintiff. The lawsuit (.pdf) claims that the record-keeping requirements are overbroad and risk chilling protected speech, and that allowing inspections of those records is an unreasonable search and seizure. Though the case focuses mainly on the primary producers of porn, it does raise important concerns about the law’s reach to secondary publishers as well.

Hymes is one of those publishers, founder of dailybabylon.com (sexual content), a site that reports on the adult entertainment industry. Many of the ads on the website are sexually explicit. Because he cannot always confirm that photos taken by others adhere to § 2257, he refrains from using many images. This, according to the complaint, “inhibits the visual depictions on the website both in connection with news stories and commentary as well as advertising, from which it derives its revenues.”

The Department of Justice is not pursuing adult obscenity cases with the same vigor as it did under President Bush, and it’s not likely to target social commentary and reporting. Still, courts have differed as to the scope of § 2257, and the Obama Administration wants to keep publishers like Hilton and Hymes within reach even if it doesn’t want to touch them.

As the Electronic Frontier Foundation explains, in Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit exempted from the record-keeping requirements any secondary producer whose activity “does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted.” The DOJ, however, believes that American Library Ass’n v. Reno, 3 F.3d 78 (D.C. Cir. 1994), represents the better view, namely that “the requirement that secondary producers maintain records was not a constitutionally impermissible burden on protected speech.”

The DOJ is now striking the same tone in its motion to dismiss (.pdf) the Free Speech Coalition case: “Plaintiffs fail entirely to explain how the government’s interest in preventing the exploitation of children could in any way be diminished simply because the producer intends—or purports to intend—the visual depiction in question to convey an artistic, political, or informational message.” In other words, any protected speech that is chilled by § 2257 is collateral damage. The government interest outweighs the First Amendment harm.

Hilton’s post on Bravo shows just how deep that harm can run. If a blogger outside the adult entertainment industry can risk prosecution by showing a public figure’s porn video, it’s not inconceivable that other media could as well. Pornography is a topic of public interest and websites should not be so restricted in how they discuss the subject. Consider porn star Stormy Daniels and her potential Louisiana State Senate run. If a writer wants to comment or report online about her candidacy and use a screenshot from one of her videos to do so, § 2257 likely applies. That means before the image can be published, that writer must first verify the records of every performer in the image and run a compliance statement with the story. Under some interpretations of the law, that writer must also keep copies of those records and the webpages on which the image appears, and make them available for government inspection. This is required under § 2257(h)(2)(iii) before a website can publish an image of Daniels, clearly an adult, from one of her movies for the purpose of reporting.

This seems like a heavy burden to bear. Although the Obama Administration hasn’t yet targeted these types of producers, it could, and that’s what poses the real First Amendment harm. Even provocateur Perez may reconsider posting porn in the future knowing there’s a five-year sentence hanging over his head.

(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the law school’s Suffolk Media Law student group and its SuffolkMediaLaw.com blog in 2009.)

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