free speech coalition • cinekink

>The 6th Circuit U.S. Court of Appeals injected a good dollop of sanity into the ongoing legal wrangling over the 2257 federal record-keeping statutes, yesterday declaring them overly broad and unconstitutional.

Responding to government contentions that the regulations are necessary in fighting child pornography and that the laws place restrictions on conduct rather than speech, the court responded that these arguments are not persuasive. As reported in XBIZ, Judge Cornelia G. Kennedy, writing for the majority, points out that child pornography may more likely be considered conduct because the underlying conduct is illegal. She then gives us this money quote:

“Adult sexual conduct is not illegal and it is in fact constitutionally protected … The regulation of visual depictions of adult sexual activity is not based on its intrinsic relation to illegal conduct. It is, therefore, a regulation of speech, because both the photograph and the taking of a photograph ‘bear … [a] necessary relationship to the freedom to speak, write, print or distribute information or opinion.’”

A perusal of the court’s 27-page decision reveals more thoughtful consideration on the sweeping reach of the statutes, their chilling effects on free expression and the right to anonymity.

With greater analysis and updated FAQs still to come from the Free Speech Coalition, industry experts caution that the ruling applies to the 6th Circuit district only – and there’s the likelihood of continued government appeals – and one has to wonder about those adult sexual activities not always considered to be legal conduct. Still, reason for some celebration indeed!

>Apparently, we’ve had our head in the sand about the pending deadline to submit comments on proposed federal regulations effecting the production and distribution of sexually explicit content. That pending deadline is now very pending, as in Monday, September 10th.

In a nutshell, obstensibly intended to prevent the use of underage performers in adult entertainment, 2257 regulations have been on the books since 1988 and in effect since 1995. To comply with the regulations, producers are required to complete a records keeping compliance form for every model/performer who appears in any work, ie photo, film, video, including depictions of “actual sexually explicit conduct.” This form asks for all kinds of personal information, including the performer’s legal name, date of birth, any and all stage, webhandles(?!?) or pseudonyms used, and it asks for personal ID numbers, along with an attached photocopy of the performer’s ID. These records are to be kept on file by the producer, cross-referenced so that they are easily retrievable by performer name and/or title of the work, and readily available for inspection by the attorney general or “his or her designees.”

Recent amendments to 2257, which were proposed by Congress and signed into law by President Bush on July 27, 2006, expand these regulations to:

* Cover a new class of so-called “secondary producers,” meaning anyone…
“(ii) digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or ‘‘(iii) inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct.”

Sound like anyone you know? Probably closest to home, this will apply to websites, many of which you possibly visit on a daily basis, including, as the National Gay and Lesbian Task Force recently pointed out, adult social networking sites such as Gay.com, AdultFriendFinder, Bondage.com and SwingLifestyles. Anyone who is a “secondary producer” will now need to have copies of the 2257 record for each and every model/performer depicted and keep those readily available for inspection, as above. That’s alot of forms.

* Cover simulated sexual conduct in addition to actual sexual conduct. While there is apparently some provision for a safe harbor that might protect mainstream (aka non-adult) entertainment producers from the regulations, that provision is yet to be defined. And whether the largesse will extend behind the coffers of big-business Hollywood to embrace independent producers will also need to be seen. And aside from all that, what precisely equates simulated sex?

* Lump in the “lascivious exhibition of the genitals or pubic area of any person” as a new, fifth type of regulated depiction. You can probably guess where we’re going with this, but in whose eyes is something determined to be lascivious? In case you’re wondering, the regulated depictions already covered are “sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or masochistic abuse” (In case you’re wondering, as we certainly were, what the hell is “sadistic or masochistic abuse?” – and for the switches among us, shouldn’t it be and/or – it’s another one of those terms that could mean nearly anything. For instance, a recent Google search turned up a city code with this definition: “…flagellation or torture by or upon a person clad in undergarments, in a revealing costume, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.)

Overall, a burdensome series of hoops that will do little to nothing to protect children and serve only to chill the open expression of sexuality. (We’re certainly feeling chilled!)

So, bottom line?
If you’re a producer, secondary producer and/or consumer of any depictions of sexually explicit conduct, actual or simulated, produced for the adult entertainment world or not – and/or you’re a supporter of full sexual expression for all – submit your comments protesting these regulations by Monday, September 10th.

Address your statements to: Admin.ceos@usdoj.gov .

IMPORTANT : Be sure to include the following in your email subject line: (Section 2257 Docket No. CRM 104).

For some samples of what you might write:

From the Gay Lesbian Task Force a letter focused largely on the rules’ effect on adult-social networking sites

From the Free Speech Coalition, some guidelines on submitting comments that relate to the rules’ effect on the adult industry, including economic impact; look also for the 2257 FAQ talking points available for download at the bottom of the page.

From the Pro-Porn Activism Blog, letters – main body and comments – from a pro-porn, free speech perspective

Whichever works best for you, just make sure it’s in by next Monday, September 10th!

(Oh, yeah. Please note that we are not an attorney and none of the above should be construed as anything resembling legal advice.)

>And, once again, does it matter if you’re a primary or a secondary producer?

We imagine we could claim some numerologically-significant superstition that prevents us from spending Friday the 13th dissecting the latest decision from the DoJ on 2257 regulations, which landed in our metaphorical laps yesterday. But to be honest, we’d really rather just declare the rest of the day a “summer Friday” and make sure we’ve got all our provisions laid up for tomorrow’s Bi Bare Beach Bash at Sandy Hook’s ~~naked~~ ~~nude~~ clothing-optional beach.

Fortunately, several others out there are already doing the heavy lifting. We’ll just pass these links along, then print out the pages and stick them in our bag with the SPF30. Nothing like a little, light beach reading!

Proposed 2257 Regulation Changes Contain Compromises, Complications – Darklady for YNOT

New Proposed 2257 Regs Published – XBIZ

Atty. J.D. Obenberger Comments on Proposed 2257 Changes – AVN

Meet you back here next week with some coherent bullet points?

>Over at A Savage Place, there’s a good bullet-point overview of last week’s ruling in Free Speech Coalition v. Gonzalez, the organization’s challenge of the revised 2257 regulations. (Hat tip Viviane’s Sex Carnival)

In many ways a set-back for the FSC, the ruling does provide several points of clarity, giving definitions for several terms that have had many producers (and even so-called secondary producers – whatever those are) scratching their heads in wonder. Perhaps most immediately significant:

While producers do have to keep copies of the IDs of performers on file, they’re allowed to blot out the day and month of the performer’s birthdate and the performer’s SSN and home address on those copies. That’s a huge deal — otherwise, think of the potential for identity theft and stalking if and when those records are released to “secondary producers”, including retail outlets — and I think it’ll make the new 2257 regs a lot more palatable to people.

Meanwhile, a bit more eye-crossingly detailed, a memorandum on the ruling prepared by AVN‘s legal correspondent carefully emphasizes the most pertinent elements of the ruling and explains the implications of the case’s rather convoluted “procedural posture.” Bottom line?

…The court allowed FSC until April 16th to show why the law, as amended, is unconstitutional; and until the end of April for the government to reply. Therefore, any time after May 1, 2007, the court may rule that secondary producers are required to have copies of the records, have them indexed, and be subject to inspections.

Can we just go back to talking about our favorite kinky movies now?

>Finally, some 2257 sanity!

>Action alert! Feds move to restrict sexual content. (Yep. Even more than now!)

>What’s 2257 divided by 13?

>A little 2257 clarity?