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Analysis: The Porn Ultimatum

2257 News Reports Misleading

Analysis: The Porn Ultimatum

A couple of other sites reprinted an article from Sunday's New York Post as if it meant something – and it actually may have, though not what it appeared to say on its face.

According to reporter Janon Fisher, "The Department of Justice wants to come up with an official list of every porn star in America - and slap stiff penalties on producers who don't cooperate.

"The new rules, proposed under the Adam Walsh Child Safety and Protection Act, would require blue-movie makers to keep photos, stage names, professional names, maiden names, aliases, nicknames and ages on file for the inspection of the department's Child Exploitation and Obscenity Section."

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Taken at face value, those "new rules" are nothing new. Those who are 2257-savvy have long assumed that the FBI (which reports to the Justice Department) would be keeping copies of all those performer IDs it's been photocopying while doing its 2257 inspections ... and of course, it could save adult companies a lot of time and money if it simply cross-referenced those IDs, so that if a company the FBI was inspecting didn't have an ID for a particular performer, the FBI could go to its own files to assure itself that that person wasn't a minor ... but why would it want to do that when busting adult companies for 2257 violations would be so much more fun?

But the thing is, when a company gets busted for 2257 – or any other reason – it's not the performers in the features who get charged; it's the company owners. So why would the Justice Department want "an official list of every porn star in America" (and this is, of course, assuming that the Post's reporter has any idea what he or she is talking about – a dicey assumption at best)?

So we went back to the Adam Walsh Act to see if we could find another reason besides 2257 that the DOJ might want to keep such a list ... and we just might have found one:

"SEC. 506. PROHIBITING THE PRODUCTION OF OBSCENITY AS WELL AS TRANSPORTATION, DISTRIBUTION, AND SALE.

"(a) Section 1465- Section 1465 of title 18 of the United States Code is amended--

"(1) by inserting 'production and-' before 'transportation' in the heading of the section;

"(2) by inserting 'produces with the intent to transport, distribute, or transmit in interstate or foreign commerce, or whoever knowingly' after 'whoever knowingly' and before 'transports or travels in'; and

"(3) by inserting a comma after 'in or affecting such commerce'.

"(b) Section 1466- Section 1466 of title 18 of the United States Code is amended--

"(1) in subsection (a), by inserting 'producing with intent to distribute or sell, or' before 'selling or transferring obscene matter,';

"(2) in subsection (b), by inserting, 'produces' before 'sells or transfers or offers to sell or transfer obscene matter'; and

"(3) in subsection (b) by inserting 'production,' before 'selling or transferring or offering to sell or transfer such material.'."

Of course, we wrote about this section when the Act was passed by Congress, noting that the "production" prohibition seemed impossible to enforce, since "obscenity" is entirely a determination made by a judicial "finder of fact" – either a jury or a judge sitting as fact-finder. Hence, it would be impossible to tell if a particular work was "obscene" while it was in production.

Attorney Reed Lee, however, raised another related objection.

"It [the statute] could not be used under current law, even imaginably, to cut off production before it's complete, at least for the reason that the work has to be taken as a whole, and if it's not completely edited yet, you don't know what the 'work taken as a whole' is going to be," Lee explained. "So for instance, we've had prior restraint kinds of challenges to situations where a cop doesn't let a dancer complete a dance before asserting it's obscene. Well, how do we know what the 'work taken as a whole' would have been?"

But Lee doesn't see the new law outlawing "obscene production" as a First Amendment problem so much as a problem under the Commerce Clause.

"If you recall, back in the New Deal days, there was a case, Wickard v. Filburn," Lee analyzed. "In that case, you had a farmer who said, 'I'm growing wheat just to feed to my cows; there's no way that that's interstate commerce; yet Congress is regulating what I can do with that wheat.' Well, the response was, "If you weren't growing that wheat, you'd be buying the wheat on an interstate market, so your growing it does affect the interstate market,' and the Supreme Court accepted that reasoning. Ever since then, it's been fairly easy for Congress to make out an interstate commerce argument for legislation, and in fact, much of the 1964 Civil Rights Act is justified, not on the basis of Congress' power to enforce the Fourteenth Amendment's equal protection clause, because that only applies to state-based discrimination, not private, but on the Commerce Clause, because they realized that hotels and restaurants that were discriminating were also, for instance, buying their food in interstate commerce, and renting rooms to out-of-state travelers."

However, Lee noted that the courts haven't given Congress unfettered power in this area, and cited the case of U.S. v. Lopez, where the Supreme Court struck down a law increasing the penalty for unlawfully possessing a gun within 1,000 feet of a school.

"Now, the question is, after Lopez, is the Court prepared to cut back on the Commerce Clause kinds of justifications, to cut back on what Congress can do under the Commerce Clause," Lee asked, "or was it really just saying to Congress, 'Don't take this power for granted. If you're going to use it, we want you to make congressional findings, and if they're not crazy, we'll defer to them, but you've just gotten sloppy.' I suspect, in the long run, it's the latter, but with some of these conservative judges, conservatives like to limit the power of the federal government generally rather than to rely on specific constitutional limitations like the First Amendment."

However, the answer to that question may be found in part in the high court's 2006 decision in Gonzales v. Raich, the medical marijuana case, where the decision upholding federal authorities' power to raid clinics which provided marijuana to patients solely within the state of California was again based on the Commerce Clause, and specifically on the Wickard case.

"So we have to ask why, in light of Lopez, are we seeing the increased possibility of federal limitations?" Lee analyzed. "Why would conservatives, who generally don't like federal legislation, put in a local prohibition on the production of allegedly obscene material? I think it's just flat-out inconsistent, but I also think I know why they did it: They hate porn more than they dislike federal power, and Congress does this all the time. When there was a carjacking in suburban Virginia that got a lot of play in the D.C. news, Congress made it a federal offense to carjack. Time and time again, the knee-jerk reaction is to make something like that a federal offense, and I think in Adam Walsh, [House Majority Leader F. James] Sensenbrenner and others were just looking to find what more they could do to fight porn, to address their morally-conservative constituency."

Lee is quick to note that the prohibition on obscene production could only be applied retroactively, after a defendant has been convicted of creating an obscene work, and to date, no court has attempted to apply the new law to an obscenity verdict; hence, no attorney has had to deal with an as-applied challenge to the statute.

What is worrisome, however, is the scope of the prohibition on "obscene production." After all, it isn't just the production company, which funds the making of an adult feature, and may supply the director, sets, cameras and other production essentials, that fits the broader definition of the concept "produces." The one essential element that all sexually-explicit productions share is adult performers having sex in front of the camera. Without them, there is no "production."

And that simple fact may go a long way toward explaining why the Justice Department would want to compile "an official list of every porn star in America": So that they too may eventually become defendants under Sec. 506 of the Adam Walsh Act.






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Mark Kernes

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