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Analysis: Government Seeks Dismissal of FSC's 2257 Suit

But its arguments in favor of the law are same-old, same-old... and still wrong

Analysis: Government Seeks Dismissal of FSC's 2257 Suit

PHILADELPHIA—The U.S. Department of Justice (DOJ), on behalf of Attorney General Eric Holder, has just filed its response to the lawsuit by Free Speech Coalition (FSC) seeking to strike down 18 U.S.C. §2257 and 2257A, the federal recordkeeping and labeling law—and its arguments have barely changed in more than 15 years.

Take, for instance, its "simple" rationale for keeping the law, as set forth in the Introduction to its Defendants' Motion to Dismiss, and its virtually identical Memorandum in support of the Motion: "If we require producers of sexually explicit images to verify in advance that their performers are at least eighteen years old, we can ensure that these producers will not create or publish such images using underage performers."

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Lost in that "simple" rationale is the "simple" fact that making and selling child pornography is illegal, absent any recordkeeping law, and that were the Justice Department to attempt to prosecute any adult producer for having made "child pornography," it would have to prove that the performer in question was indeed underage—and nothing in the 2257 recordkeeping requirements would help it do so.

Citing both the seminal anti-2257 suit—1994's American Library Association v. Reno—and the government's latest victory—Connection Distributing v. Holder, the heavily dissented opinion by an en banc panel of the Sixth Circuit which overturned a trial court's invalidation of the law—plus its arguments against Alberto Gonzales' 2005 reiteration of the 2257 regulations in FSC's 2257 lawsuit in Colorado, the DOJ attorneys claim that 2257 "advance[s] the abatement of child pornography in fundamental ways" beyond the mere threat of a child porn prosecution.

"As these courts have recognized," the DOJ attorneys write, "Congress' compelling goal of preventing the sexual exploitation of children would be undermined if the recordkeeping requirements allowed for exceptions on a subjective basis, such as where a producer believes that a performer is an adult, or where a producer believes that a depiction has artistic or social value.  Congress' adoption of an objective, universal requirement prevents circumvention of the rules through such subjective assessments.  Indeed, visual depictions of child performers engaged in actual or simulated sexually explicit conduct do qualify as illegal child pornography, regardless of how artistic or socially valuable a producer intends such images to be." [Emphasis added]

For the Justice Department, however, there's no disconnect between the idea that adult producers might not want to be convicted of child porn for shooting an underage performer—and therefore would check the person's IDs—and the idea that mainstream movie producers who keep tax and other employment records on their underage performers who might engage in simulated sex can get a free pass from 2257 scrutiny by merely filing a letter with the attorney general.

"[R]ecognizing that some producers of images of simulated sex or lascivious displays may already be required by state or federal law to verify performers' ages and maintain records, Congress allowed such producers, upon certification that they are under such requirements, to continue to follow their previous regime rather than adopting the format set forth in §2257 and implementing regulations," the Motion points out. But of course, "Like the previously existing requirements, these amendments were motivated by Congress’ goal to prevent child sexual exploitation, not by hostility to any particular viewpoint."

Let's be clear: If a Hollywood or independent producer uses an underage actor in a nude or simulated sex scene—that is, "conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so"—that producer could still be busted for child pornography, but if he/she had previously filed a letter with Holder stating that he/she kept a record of the performer's age in the normal course of business, the producer could only be tried for child porn, not for a 2257 violation.

Yeah, that's "content neutral" regulating!

The Motion also argues that exempting mainstream producers from the burden of indexing records while requiring hardcore producers to do so isn't a violation of the Constitution's Fifth Amendment guarantee of equal protection under the law. But the government's success in defending that position will depend on its convincing the court that strict scrutiny should not be applied to the issue, since only under rational basis scrutiny, a lower standard, can the greater requirements for adult producers be justified as being "rationally related to a legitimate government purpose."

The Motion also spends some verbiage attempting to show how relatively easy it is for adult producers to comply with the regulations, citing the fact that records inspectors may look only at the records of specific suspected underage performers, that the inspections will occur only "at reasonable times, within reasonable limits, and in a reasonable manner without causing unreasonable disruption" during the 20 hours per week that producers must be present to make the records available—and that in any case, producers could contract that recordkeeping out to third parties.

The government concludes its introduction to its Motion by claiming that, "The government’s interests, and those of the public, would be significantly harmed if producers of visual depictions of sexually explicit conduct were relieved of the requirement that they verify performers' ages"—again somehow failing to understand that absent the recordkeeping requirements, adult producers will nonetheless unfailingly check performer IDs because they don't want to be busted for child porn.

The government's Motion goes on to recap the history of 2257, citing its enactment in 1988 based on the findings of the (heavily biased) Meese Commission, though somehow that Commission's finding that the use of underage performers in the adult industry, even back in the mid-'80s, was minimal to non-existent has been left out of the current Motion.

But suddenly we find, "Nearly 20 years later, §2257’s recordkeeping requirements are substantially the same as they were in 1990, though adapted to modern technology."

Hmmm—and what was the government doing to enforce those vitally important regulations for the "nearly 20 years" until they were amended? Zero, zip, nada—surely not the best argument for the law's retention, especially not in the modern era, when child porn laws have become more stringent, and adult companies have become rooted in the community and have even greater impetus to avoid the use of minors in their products.

The first actual argument for dismissing the suit and denying the Motion for a Preliminary Injunction rests on the fact that despite the Plaintiffs' claims of Fourth Amendment (search and seizure) violations, none of the plaintiffs has yet been prosecuted for a 2257 violation, and therefore the claim is "unripe." Apparently, the fact that more than 20 adult video and internet companies have already been inspected—the last more than two years ago—and that the DOJ has yet to decide whether charges should be brought against any of them, even though some reportedly had no records whatsoever to inspect (and conviction under 2257 therefore should have been a slam dunk), would suggest that the claim is indeed ripe enough... and suggests that the fact that there have been no prosecutions under the law is a ploy on the Justice Department's part so that it could make just this argument in the inevitable 2257 lawsuit.

But there is such a thing as facial challenge to a law, and if after 20 or so inspections, there's an argument to be made that adult companies, represented here by Free Speech Coalition, aren't in danger of being prosecuted under the 2257 law, the Justice Department fails to make it here.

The DOJ also argues that the fact that 2257 allows inspectors to enter and search the private homes that serve as the base of some webcam shows without a warrant is also not a Fourth Amendment violation because so far, the inspectors haven't done that: "This fact is particularly significant because, in light of the applicable DOJ regulations, it is not clear whether any inspection of premises (as opposed to records) would ever occur."

Again, "facial challenge," anyone? But of course, there are always those third-party recordkeepers that would obviate the need for such inspections anyway...

In its "Arguments" section, the DOJ claims that 2257 places no "direct restriction on protected speech," but as several plaintiffs and experts have already testified in the Colorado lawsuit, the enormous cost involved in preparing, indexing and storing the required records, not to mention the cost of having a records custodian available at least 20 hours per week for at least seven years, or alternatively, paying a third-party recordkeeper to be available for that amount of time, would seem to belie that argument.

The government also argues that the recordkeeping and labeling requirements are not "content-based restrictions on speech," and therefore undeserving of strict scrutiny. But that argument ignores the fact that some plaintiffs here, notably the photographers, who are often away from their businesses for days or weeks at a time, would be unable to practice their profession if forced to comply with the 20-hour-per-week requirement, while others like Betty Dodson and Dr. Carol Queen have argued that they have had difficulty obtaining nude models for their work because the models fear having their identities disclosed to government investigators (not known for their respect for privacy) or the public at large.

The government further argues that the 2257 regulations are "narrowly tailored to serve the government's significant interest in preventing child pornography." Hopefully, all the court will have to do is to take a look at 69-year-old actor Dave Cummings, whose IDs are among those producers are required to retain and cross-index, to see how "narrowly tailored" the law is to prevent child porn.

In that same vein, the government seriously argues that to exempt, for instance, MILF productions from the 2257 recordkeeping requirements would thwart the intent of the law, since "exceptions based on subjective assessments would undermine the recordkeeping scheme"—and therefore, the 2257 requirements are not "overinclusive."

"While plaintiffs suggest that the depictions that they produce 'neither resemble[] nor [are] akin to child pornography,'" the government's Motion claims, "by conceding that the requirements apply to these depictions, plaintiffs effectively concede that these depictions would in fact qualify as child pornography if they used performers who were not adults."

No shit! As everyone knows by now, any use of an actual minor in actual or simulated sexually explicit content is child porn!

"Indeed," the government continues, "providing an exception for depictions based on their artistic or social value would open wide the door to claims from any and all producers that their visual depictions of sexually explicit conduct had such value—after all, who would concede that their own depictions were not 'artistic'?—and that they therefore should be deemed immune from the recordkeeping requirements."

But even absent 2257, any court would immediately dismiss claims of "artistic value" for porn productions containing children for the simple reason, as noted in New York v. Ferber, that engaging a child in sexually explicit conduct, even simulated, harms the child—which is the reason Ferber is the basis for all child porn prosecutions.

"Indeed, if the recordkeeping requirements had varied according to the message that a producer intends to, or does, convey," the Motion continues, "or based on an image's artistic, political, or journalistic value, that would introduce the very subjectivity that the universal age verification and recordkeeping requirements so carefully avoid."

Right; forcing the producers of all of the thousands of adult movies, internet scenes, photos and webcasts produced every year, which only use adult performers, to keep possibly worthless photo IDs and spend millions of dollars indexing them is just what's needed to avoid "the very subjectivity" of looking at an obvious adult and saying "Hey, that person is obviously an adult" that the "universal age verification and recordkeeping requirements so carefully avoid"!

Also in the government's retinue of arguments is the claim that "the requirements directly advance the government's interests because they ensure that performers are adults." Of course, they do nothing of the kind. Adult producers are not required by the statute to be able to differentiate between legitimate photo IDs and clever fakes, but merely to keep copies of such IDs and index them. So while producers have a vested interest in making sure that all of their performers are adults, merely keeping and indexing copies of IDs does nothing to further that interest.

"Plaintiffs next argue that federal child pornography prosecutions are generally successful, and that there is therefore no need for age verification or recordkeeping to prevent child pornography," the government Motion states. "Again, other courts have rejected this argument, recognizing that Congress intended the age verification and recordkeeping requirements to serve a specific purpose—to fill the loophole created when a performer's age cannot be identified."

Surely, that argument turns the purpose of 2257 on its head. Absent the current law, adult producers might keep age verification records on their performers in order to show FBI agents that performers in their productions are not underage, but they would hardly keep records that show that any of their performers are underage! They'd rather just not keep any records at all—and indeed, actual child pornographers actively seek to avoid the possibility of law enforcement officials finding out that their models are minors by not keeping 2257 records! In such cases, the government would use other sources to identify the children used in child porn, and has been known to employ the Tanner scale to suggest that certain body characteristics of models indicate that they're under 18—but they never find the child pornographers in possession of kids' photo IDs.

Also in this section of the Motion, the Justice Department, which throughout has claimed that 2257 regulations are not content-based, actually argues that Congress had no content-based reason from allowing producers of simulated sex movies to simply file a letter with the attorney general while requiring adult producers to go through the massive and expensive recordkeeping procedure: "Congress' chosen mechanism to prevent the exploitation of children in producing depictions of actual sexually explicit conduct does not need to be the least restrictive means available, and the fact that Congress provided a different alternative for certain other material does not undermine the conclusion that the age verification and recordkeeping requirements advance Congress' goals."

Yeah, it was just pure chance that Hollywood got off cheaply!

The government also claims that the Plaintiffs can't succeed in their overbreadth claim because, citing the Michael Williams case, "Under the First Amendment’s overbreadth doctrine, 'a statute is facially invalid if it prohibits a substantial amount of protected speech,'" and the government continues to take the position that despite the hundreds of man-hours and tens of thousands of dollars necessary to collect and index the age verifications, adult companies can continue to produce as much protected content as they could without having to go through that expense—and that those same requirements somehow don't constitute a "prior restraint" on the producers' speech—the speech they can't create because of the regulations!

"Significantly, the plaintiff bears the burden to establish, not only that there may be isolated instances where a law is unconstitutional as applied, but that there is substantial overbreadth," the Justice Department attorneys write. So the fact that of the thousands of adult movies released every year, not one contains an underage performer is somehow not evidence of "substantial overbreadth"?

Of course, the granting of a preliminary injunction against enforcement of the latest 2257 regulations is different than the question of whether the lawsuit itself should be dismissed, and the DOJ attorneys claim that Plaintiffs have failed to show that "irreparable injury" will result if the law continues to remain in effect during the pendency of the litigation.

"Indeed, both the public and the government's compelling interests in preventing the exploitation of children will be harmed if an injunction is granted," they argue, "and these interests outweigh any possible interest of plaintiffs in enjoining the requirements while the merits of their claims are resolved."

But wouldn't the fact that the government has not brought one single charge of 2257 violation against an adult producer in the "nearly 20 years" of the law's existence suggest that neither the public nor the government would be harmed by leaving child porn prosecutions in the hands of prosecutors? And that allowing adult producers who make adult movies with adults, for adults, to go about their business without having to worry whether some missed nickname or misplaced comma, or HIV test included with productions records may subject them to prosecution and several years in the slammer?

Perhaps the Plaintiffs' response to the government's Motion to Dismiss will provide some answers—but sadly, those answers will probably have to wait at least until the Philadelphia district court's first motion hearing.






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