On Not Listening To Jackasses

Well, it's been a while since I updated, but that's because we've been pretty heavily involved in the nominations process ... and I have seen more POV DVDs, solo DVDs and so-called "tease performances" over the past few days than you can shake a stick at, which is more tiring than you might believe ... and that's the stuff (aside from storyline features) that I actually like to watch!

But fortunately, in my absence, there was someone to take up the slack on breaking down the complex legal issues affecting the industry: Bill Margold.

Speaking of the recent 6th Circuit decision about the recordkeeping and labeling law, 18 USC §2257, in Connection Distributing v. Keisler, Margold said:

"I don't believe it's pertinent in the long run to the overall hardcore industry. Connection was a swingers magazine. They were basically fighting for their rights to privacy more than anything else. It was an invasion of their privacy because swingers are not commercial, hardcore performers."

Gee, really? Because I thought, when I (unlike Margold) actually read the opinion, that the court was telling the government that claiming that anyone taking a picture (or video) of adults engaged in sexually explicit conduct had to keep massive files of records, including every fake name and nickname the person ever had, and cross-index them, and make them available to government inspectors for 20 hours a week for seven years because those adults might be kids was bullshit!

"While the government is indeed aiming at conduct, child abuse, it is regulating protected speech, sexually explicit images of adults, to get at that conduct. To the extent the government is claiming that a law is considered a conduct regulation as long as the government claims an interest in conduct and not speech, the Supreme Court has rejected that argument... The expression at issue here is not conduct, it is speech. Images, including photographs, are protected by the First Amendment as speech as much as 'words in books' and 'oral utterance[s].' Indeed, visual images are 'a primitive but effective way of communicating ideas ... a short cut from mind to mind.' ... Child abuse, the actual conduct in which the government is interested, is already illegal... Adult sexual conduct is not illegal and it is in fact constitutionally protected."

Last I knew, the "overall hardcore industry" takes pictures and videos of people involved in sexually explicit conduct, and so for them not to have to waste hours and hours of employee time, not to mention warehouses full of filing cabinets and terabytes of hard disk space, proving to some bureaucrat that adults are adults might just save them all a couple of bucks ... not to mention, they wouldn't have to spend years in jail because some FBI inspector couldn't read an ID, or because they used a pseudonym for the custodian of records in the 2257 statement on the DVD box.

Margold: "The secondary producers were never going to be in jeopardy. I always figured that was going to go, too."

However, those of us not able to see the future so clearly were worried when the new 2257 regulations made final by Gonzales a couple of years ago defined "producer" essentially as anyone who in any way manipulated a sexually explicit image, even something as simple as posting a boxcover on a retail website.

In fact, what they said at that time was, "Citing the Tenth Circuit's holding in Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir.1998), several commenters commented that the rule's application to secondary producers exceeds the Department's statutory authority... In contrast, the D.C. Circuit in American Library Ass'n v. Reno implicitly accepted that the distinction between primary and secondary producers was valid. The D.C. Circuit there held that the requirement that secondary producers maintain records was not a constitutionally impermissible burden on protected speech... Consistent with the D.C. Circuit's holding, which the Department believes reflects the correct view of the law, the Department declines to adopt these comments."

I guess that's why Free Speech Coalition had to sue Gonzales: Because secondary producers were in immediate jeopardy from FBI inspectors and Justice Department lawyers if they didn't scramble to try to gather up 10 years worth of 2257 records from primary producers and index them. And I guess that's why, in response to Free Speech's lawsuit, Congress passed the Adam Walsh Act, which wrote "secondary producers" into the law for the first time since 2257 was passed in 1988 ... and why Free Speech may have to sue the Attorney General again if he tries to put the new regulations, which again put liability on secondary producers, into effect.

So I guess the bottom line is, there's only one non-lawyer writing for an adult publication who's willing to read legal opinions issued by the courts, listen to the attorneys who are involved in the cases, and digest it all to inform his readership what's happening on the legal front that might affect adult businesses ... and it ain't Margold.


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