Weiner's Wiener and the Problem of 2257

WASHINGTON, D.C.—Now that Rep. Anthony Weiner (D-NY-09) has belatedly decided that truth is better than fiction when it comes to the "sex scandal" in which he's been involved for the past week—a course we'd earlier advised for fellow New Yorker Elliot Spitzer, and before him, President Clinton, but who listens to us?—it seems as though the congressman may have inadvertently run afoul of a law that's been plaguing the adult industry for the past 20 years or so: 18 U.S.C. §2257.

According to a story posted today on Huffington Post, Andrew Breitbart, the conservative gossip-hound who first outed Weiner's sexual tweets that included a now-confirmed photo of Weiner's turgid underpants, on Monday showed Sirius XM radio hosts Opie & Anthony what purported to be a photo of Weiner's bare, erect penis, which Breitbart had said he received from Weiner "Facebook friend" Meagan Broussard, who said she'd been "sexted" it by Weiner himself.

Assuming all that's true—and of course, there are ample reasons to doubt Breitbart's version of events, not to mention the possibility that Broussard's photo is not actually of Weiner's wiener—the mere fact that Weiner took a photo of his own erect penis throws him into the morass of recordkeeping, disclosures and inspection requirements mandated by 2257.

As AVN recently reported, attorneys J. Michael Murray and Lorraine R. Baumgardner, as part of their argument to get Free Speech Coalition's lawsuit against 2257 reinstated by the Third Circuit U.S. Court of Appeals, argued that the statute targets not only commercial works, but any image that contains sexually explicit conduct, including "lascivious exhibition of the genitals," even for private use, but certainly when such image is sent to another person.

"The plain language of the statutes (and of the regulations as well) defines their reach as extending, not only to commercial expression, expression offered for trade, and private expression posted on social networks and on tube sites, as the Government concedes, but also to other private expression–whether captured on a cell phone, attached to an email, or stored on a digital camera," Murray and Baumgardner argue. "There is absolutely no hint by Congress that it intended to exclude this particular expression from the statutes' requirements. The legislative history, in fact, indicates otherwise.

"Indeed, the distinction that the Government draws between expression posted on social networks and tube sites (which it says is subject to the statutes’ requirements) and that sent by cell phone, attached to an email, or displayed on a digital camera (which it says is not) goes begging for any support in the language of the statute or the regulations," FSC's attorneys continue. "Nowhere in the statute is there any textual support for the Government’s argument that a person who posts a sexually explicit image on an adult social network website must comply with the statutory record-keeping and labeling requirements, but a person who attaches that same image to an email, does not. Under a plain reading of the statutory language, a vast body of intimate expression between husbands and wives, lovers, and other consenting adults is subject to the record-keeping provisions of these two federal criminal statutes." [Citations omitted]

Murray and Baumgardner are clearly correct. 2257 states, "Sexually explicit conduct has the meaning set forth in 18 U.S.C. §2256(2)(A)," and that statute defines the term to mean "actual or simulated ... (v) lascivious exhibition of the genitals or pubic area of any person." Clearly, Weiner's erect penis fits that description.

Therefore, to be in compliance with the law, Weiner would have had to 1) make a photocopy of his government-issued photo ID and keep it in a folder designated for 2257 materials, together with a copy of the photo in question; 2) affix a label to the photo identifying its date of production, the actual person whose job it is to maintain 2257 records, and the physical location where those records are kept; and 3) make himself (or his records custodian) available at least 20 hours per week at the location where the records are kept, in case a Justice Department investigator wants to examine those records. It appears that Weiner has fulfilled none of those requirements.

These same violations, it would appear, may also have been committed by Breitbart himself who, as a "secondary producer," "passed his ... phone around" and showed the photo to Opie and Anthony, who themselves, also as "secondary producers," allowed the image to be "captured by ... a video camera that was on." In fact, Gregg Hughes (the "Opie" of Opie & Anthony) admitted in a tweet that, " I did try to take a pic of @AndrewBreitbart's phone but it came out blurry because @anthonycumia ["Anthony"] ... grabbed the phone. Wasn't until @AndrewBreitbart left the studio that we realized what was captured on our video camera."

Of course, with the government taking the position that 2257 only applies to commercial works or works posted on social networking sites, it would probably decline to prosecute Weiner, Breitbart, Hughes and Cumia for the violations—but if FSC fails in its lawsuit, and especially if a Republican is elected President in 2012, Weiner and the rest may find themselves doing five years of hard time in the proverbial Graybar Hotel.

So, Congressman Weiner: Can Free Speech Coalition count on your support in its lawsuit to abolish this unworkable and unconstitutional law whose hammer might come down on your head? (And we're not talking about the "little head," either!)