UPDATE: LA Weekly has now removed 22 of the images from its pictorial slideshow, including almost everything that appears to violate Sec. 2257. They are apparently unaware that in a scene containing hardcore action like this one may be, it's not sufficient that the hardcore isn't actually shown in the photograph if hardcore action is taking place behind a prop or another person. We're also unclear whether shots like this one or this one violate the prohibition on "lascivious exhibition of the genitals," since for some reason, under the law, a woman's breasts are considered genitals.
LOS ANGELES—LA Weekly, the weekly ad-supported tabloid and website covering various social and entertainment activities around town, has managed to get itself into legal trouble by publishing a pictorial by photographer Gustavo Turner titled "This Is How Your Porn Is Made in 2016 (NSFW)."
Ostensibly, Turner was invited by director Bree Mills to a Girlsway (all-girl) shoot that took place somewhere in the San Fernando Valley. Though no title was given for the soon-to-be-completed content, Mills told Turner, "Porn fans these days are also fans of entertainment in general. They enjoy Game of Thrones, they go to Comic-Con and they watch porn. We took the best aspects of current television and comics, like expanded universes, continuing storylines, etc., and applied it to porn. We were lucky too because fans of lesbian porn like 'story.'"
But the focus of the piece was the "slideshow" consisting of 103 images that Turner took of adult performers Briana Banks, Reena Sky and Melissa Moore and the location, showing the actresses and crew setting up shots, getting made up to go on camera ... and even some (possibly simulated) hardcore action that will appear in the finished video.
And that's where LA Weekly got into trouble. In looking over the photos, AVN identified 19 images that appear to show sexually explicit conduct, including pussy-licking, female masturbation and fondling of breasts, all of which, even if merely simulated, run afoul of federal law, specifically the federal record-keeping and labeling law, better known in the adult industry as "2257."
"The photos AVN has identified fall under 18 U.S.C. 2257/2257A’s regulations," noted First Amendment attorney Lorraine R. Baumgardner, who has been assisting her senior law partner J. Michael Murray in pressing the lawsuit against 2257, which is now before the Third Circuit U.S. Court of Appeals in Philadelphia. "They all seem to depict actual or simulated sexually explicit conduct; therefore, LA Weekly needs to comply with the statutes and regulations to avoid criminal prosecution.
"The law requires LA Weekly to maintain copies of photo identification documents (driver’s licenses, passports) of the models depicted in these photos and to 'affix' a statement to its website identifying the address where the models’ photo identification documents are maintained," she continued. "There is no such statement on the LA Weekly website, however. Failure to comply with these recordkeeping and labeling requirements is a federal offense punishable by a term of imprisonment up to five years if the photo depicts actual sexual conduct, or up to one year if the photo depicts simulated sexual conduct."
Moreover, even if such documents are in the possession of photographer Turner, under the law, LA Weekly itself, on account of having published the photos on its website, would be considered a "secondary producer" of the images, and must have copies of the photo IDs in its own possession, filed and indexed as required by the statutes. Failure to have possession of the ID documents or to have them filed in the prescribed manner is another violation, also punishable by a five-year prison term and/or fine for the first offense.
Obviously, no one at LA Weekly is familiar with 2257, but ignorance of that law, as they say, is no excuse—and just one more reason why the lawsuit, which lists as plaintiffs Free Speech Coalition, the American Society of Media Photographers, the Sinclair Institute, Nina Hartley, Carol Queen, Betty Dodson and others, should be decided in favor of those plaintiffs, thus striking down the law, which affects not just adult content producers, but even ordinary citizens who take sexy pictures or videos of themselves and others and email, sext or Skype them to their partners.
The Third Circuit heard additional arguments from both the plaintiffs and the government in a rare second appellate hearing last December. A ruling is expected shortly.
