First, a reminder about the good news: On April 16, the Free Speech Coalition and the 16 other plaintiffs (including Nina Hartley and Dave Cummings) won a major victory when the Third Circuit U.S. Court of Appeals overturned Judge Michael Baylson’s dismissal of their complaint against the federal recordkeeping and labeling laws, 18 U.S.C. §§2257 and 2257A.
The question now: Where do we go from here?
Fact is, much of the adult entertainment industry has become complacent about 2257, even though the law assumes that all producers are child pornographers and forces them to prove they’re not. The major production companies all either have in-house recordkeepers (each of whom draws a full-time salary) or they farm out the work to the handful of third party recordkeeper businesses, some of whom charge upwards of $150 per title, that have cropped up in the wake of the Department of Justice’s most recent rewrite of the regulations. Or they could invest $3,000 in the 2257 software package that FSC offers, which automates the filing of the required documents on a company’s own computer. (Of course, those last two options aren’t cost-effective for the myriad webcam girls and other online content providers, and all three options are problematic for large online DVD distributors and retailers, who need 2257 records for every single one of the tens of thousands of DVD sleeves they post on their sites so consumers have some idea what they’re buying.)
And of course, none of that takes into account the number of companies, brick-and-mortar and online, that just don’t bother to keep 2257 records but merely put the required label on their packages and hope they’ll never come under federal scrutiny.
The fact is, 2257 compliance is a bitch.
“The 2257 statute is particularly burdensome and oppressive against all who are required to comply with its terms,” assessed J. Michael Murray, the lead attorney for the plaintiffs in the current lawsuit, “because not only are the penalties for non-compliance or even incomplete or erroneous compliance are so severe—five years in prison for each offense—but because the cost and energy and time that has to go into creating these records, and labeling materials with where the records can be obtained, and making the industry available for searches and seizures without warrants at any time the FBI chooses to knock on their door is just something that needs to be fought as vigorously as possible in order to relieve the industry of those oppressive burdens.”
And guess what? The government already knows that there’s an excellent chance that any company they inspect will be out of compliance in some way. That’s what FBI Special Agent Charles Joyner, the person in charge of the FBI’s now-disbanded 2257 inspection team, told AVN back in the summer of 2007, when inspections were in full swing.
“Very poor, with a couple of exceptions” is how Joyner described the results of the 19 compliance inspections his team had conducted thus far. “These are legal businesses. They have attorneys counseling them. Our assumption was they would be in complete compliance, and I was surprised to see that very few are. Most of them are out of compliance. That was a surprise.”
And while it’s true that many of the 16 non-compliant companies were able to become compliant when Joyner gave them a few weeks to get their records in order, the industry would be foolish to assume that the next team leader will be so generous—or that the next federal administration will be as hands-off regarding adult entertainment as the current one appears to be.
Attorney Jeffrey Douglas, who frequently deals with 2257 compliance issues, agrees.
“I’d say that substantially less than 50 percent of companies are compliant; my best estimate is that 15 to 20 percent are substantially compliant,” he warned. “However, more than 95 percent of companies have appropriate IDs on their models, but sadly, that’s not enough.”
Bottom line: If 2257 is not overturned, some of the most powerful people in the adult industry will find themselves being sentenced by a federal judge for having done nothing more than having a few documents in the wrong (actual or virtual) file folders.
Simply put, it’s an outrage, and one that the Free Speech Coalition has sued—twice!—to have overturned, with the latest volley by Murray and associate Lori Baumgardner having succeeded in getting the lawsuit reinstated after it was improperly dismissed by Judge Baylson.
Although the unanimous opinion by the Third Circuit panel (authored by conservative Judge D. Brooks Smith) was very good, giving the plaintiffs much of what they wanted, the concurrence by Judge Marjorie Rendell was outstanding. Not only did she take issue with the majority’s facile conclusion that the government had “adequately demonstrated” that 2257 and 2257A “advance a substantial government interest” since in the 25 years of the law’s existence, it hasn’t turned up one single instance of an underage performer, it’s also superfluous because adult producers are already well aware of child pornography laws and all take steps to make sure no minors are in their movies.
Plus, as Judge Rendell wrote (and AVN pointed out years ago), “In the absence of such evidence, it is easy to think of reasons the statutes might not accomplish their desired result. For example, given the substantial federal and state criminal penalties for creating and distributing child pornography ... it is hard to fathom that the statutes’ recordkeeping requirements would make anyone who was already inclined to engage in such activities change his behavior. An unscrupulous producer who seeks to distribute images using underage (as opposed to merely young-looking) performers could falsify his records, and a producer who operates underground is not likely to follow the recordkeeping requirements at all. Similarly, a child determined to pass herself off as an adult could easily provide false identification to the producer.” [Citations omitted]
Judge Rendell also made the point that the warrantless inspections mandated by the law cannot be justified by any “administrative search” rationale, since the adult industry is not the type of “pervasively regulated” industry for which such searches are permitted, and it’s not as if producers, knowing that a search warrant is about to be served, can kludge together a 2257 compliance system in a matter of hours or even days.
“The Fourth Amendment implications of a law that permits the FBI, unannounced and without a warrant, to knock on your door and, on pain of a felony conviction, be permitted to enter private areas of your premises including homes and offices to search through private records and make copies of all those private records and to take anything else they believe is evidence of a felony and to use any further investigative techniques they desire to use is breathtaking,” Murray stated.
The point is, this is a winnable fight—but only if adult content producers get on board to fund it.
“The cost of the litigation is extraordinary,” said FSC executive director Diane Duke. “We’re looking at almost $300,000 in costs already, and understand that FSC’s entire budget is less than $500,000 annually, and that also has to take care of rent, salaries and other things. We’re at the point now where we do owe our lawyers money, and we hope the industry will support that. Our next steps are the critical ones. The opinion that came down from our appeal was solid, and probably one of the most promising decisions we’ve had. I think we’re now at a turning point for 2257 and I think that this litigation will be the one that determines what the future of 2257 is and the future of recordkeeping for the adult industry.”
Duke is asking that producers step up and use some of their profits to save themselves thousands of dollars in the long run—and keep themselves out of prison.
“What we’re asking smaller producers is, ‘Consider giving FSC an additional $500 a year—less than a cup of coffee a day!—targeted directly to 2257,’” Duke explained. “The mid-sized producers, see if they can do a couple thousand. Larger producers, $20,000. Those are the levels we’re going to be asking for. In the long run, that will pay off.”
Hey, it’s got to be cheaper than paying your attorney anywhere from $250 to $1,000 per hour to keep you out of prison for your “paperwork violation”!