The Bigger Picture: The Facts Of 2257 Reveal The Flaws Of 2257

CHATSWORTH, Calif. - Recently, published an article by Robert D. Richards and Clay Calvert of the Pennsylvania Center for the First Amendment about their interview with FBI Special Agent Charles Joyner, who was quite candid in describing the 2257 inspections conducted by his team so far.

According to Joyner, 19 adult companies have been inspected for labeling and record-keeping violations, and only three were found to be violation-free. AVN sources say that two of those companies were Wicked Pictures and Diabolic Video. However, Joyner told Richards and Calvert that all but two of the companies with violations had been able to become compliant before Joyner submitted his final report on them to Justice Department officials.

Going into more detail, Joyner said that the three most common violations that he and his team had seen were failure to properly cross-reference data, missing IDs and illegible IDs.

It's the cross-referencing requirement, however, that didn't sit well with some of the attorneys involved in the Free Speech Coalition's lawsuit against the 2257 regulations, which will soon be refiled to challenge the law itself."

Cross-referencing is precisely one of the basic points of our fundamental challenge to 2257," said attorney and Free Speech board member Reed Lee, "and that is that it seeks to substantially criminalize material, even though it's constitutionally protected, if the person can't prove that it's constitutionally protected—and not just to someone's satisfaction, but in the precise way that the Justice Department has set out in advance."

"Let me give you an example," he continued. "It's unlawful for employers in the United States to hire certain people who are here without a right to work; without so-called 'green cards.' In an effort to combat that problem, Congress has required employers to fill out forms on everybody they employ, so there's no question about ethnic discrimination. Those forms are called I-9s. If you don't fill them out, the feds call it a 'paperwork violation', and it's sanctionable by a civil penalty of between $100 and $1,000, depending on the good faith of the employer. Contrast that with a 'paperwork violation' under 2257, which not only sends somebody to jail on a federal felony for nearly half the time that they'd go to jail if they were actually exploiting children, but it criminalizes the transmission of the material [on the Internet or on DVD]. Those are two major differences that are of the utmost constitutional import, and they lie at the heart of what I've referred to as the root and branch attack on 2257."

What many, including the attorneys, don't understand about 2257's ID requirement is the need for inspectors to find—and have cross-indexed—"[a]ny name, other than each performer's legal name, ever used by the performer, including the performer's maiden name, alias, nickname, stage name, or professional name."

"Since the requirement is any name ever used," analyzed Free Speech board chair Jeffrey Douglas, "I was known as 'Four-eyes' when I was in kindergarten because I was the first person to get glasses. What is the likelihood that my nickname 'Four-eyes' is going to be associated with me performing underage? It's a perfect example of terrible regulation where you take everything logical, bring it out to its most extreme version and say, 'Well, what about this?'"

When the FBI goes into an adult company to perform an inspection, what it looks for are 1) a copy of the depiction they're there to investigate, and 2) the government-approved form of picture identification the company keeps to be in compliance with 2257, which contains a photo of the performer, that person's legal name and the person's date of birth.

"If a performer is performing underage, once that's determined, people are going to be referencing that legal name; they're not going to be referencing the stage name," Douglas continued. "All you have to do is determine the legal name and then everybody knows where to go from there. So the single most burdensome component, the cross-referencing, is largely pointless. It would be one thing if, in real life, there was a measurable number of performers performing underage where a situation could arise that the only thing they know about the performer is a stage name, but if you're referencing by stage name, it still doesn't do any good to have the additional cross-referencing; it's entirely unnecessary."

"When Mr. Joyner talks about the cross-referencing violations," Lee added, "he gets into another problem. He's apparently reading the regs—and admittedly, they are subject to this reading—as follows: He should be able to go in with a performer's real name and find out the nickname the performer used, you know, when they played soccer in high school. The issue I'm raising here is as to the direction of the cross-referencing. The government had at least a plausible claim as to why you should be able to get from a nickname to the performer's [real identity]. It does not have a legitimate reason why you should be able to get from the performer's proof of age to every nickname that performer's ever used. That's no business of the government's."

Lee went even further, arguing that the requirement of adult producers to get every performer's every nickname is unconstitutionally burdensome."In virtually every First Amendment case, the courts have said that the government may not burden expression unless it has a very, very good reason," Lee explained. "Governmental sloppiness is not a sufficient reason, so that the fact that they've never considered what earthly purpose there would be in getting the childhood nickname of a performer whose name and birthdate they now know [by looking at the identification document] is just an example of the fact that I don't think any single person on the government's side of 2257 has thought the matter through as thoroughly as the courts have required people to think through regulations on speech."

Lee noted that the Justice Department is in the process of revising the 2257 regulations in light of the changes in the law brought about by the Adam Walsh Act, and hopes that those long-overdue changes will clarify just what the cross-referencing is intended to accomplish.

"Assuming the basic idea behind 2257 is legitimate—that is, to make the [producer] prove that there are no underage performers—still, all the regulations would legitimately require under those circumstances is that the government come in with the name of the film and be able to get to the ID information, clearly identifiable ID information for everybody in the movie, in a sexual role or assisting somebody in a sexual role," Lee stated. "That's the idea behind cross-referencing, is that if all they've got is the name of the movie, they've got to be able to get to the [identity] data. If all they've got is the performer's real name, they've got to be able to get to the data. If all they've got is a stage name, a nom de porn, they've got to be able to get to the data."

Another concept that didn't sit well was the implication that an adult company needs to hire a professional database specialist to be sure of compliance with the 2257 regs.

"In this country, not only prohibitions against speech can run afoul of the First Amendment, but burdens on speech can as well," Lee instructed. "This is not a country where in general you need to have to talk to a lawyer before you can speak. The presumption in this country is freedom, and the reality, the ultimate reality is 'sufficient breathing space', the Supreme Court once called it, where speakers don't get chilled out of speaking because they can't afford to go to a lawyer first."

Lee lauded Joyner for "acting in remarkably good faith, given what he's been handed; I'm pleasantly surprised by the fact that the FBI appears to be trying to do a professional job with the regulations and the statute they've been handed," but suggested that neither the FBI nor the Justice Department appeared to have given much thought to the difficulties the record-keeping requirements place on the smallest of adult businesspeople.

"They just haven't thought how this applies to the genuine micro-producer, the so-called 'webcam girl' that has a website up with maybe 2257-covered images of herself and maybe a few of her friends, but doesn't have 20 hours a week to sit around waiting for the FBI inspectors that may never come," he lamented. "This is the person who doesn't have the wherewithal to hire a Ph.D. in computer science to keep records. We've got to keep in mind that this is a burden on expression. If this were a burden on expression that were truly narrowly tailored to the problem of child pornography, it might be a burden that we'd have to bear, but the vast majority of material to which 2257 applies is not child pornography. The vast amount that's burdened has nothing to do with children in its production. That's why it's not narrowly tailored."

"Our assumption was they [adult businesses] would be in complete compliance, and I was surprised to see that very few are," Joyner had told Richards and Calvert. "Most of them are out of compliance. That was a surprise.... If they hire an 18-year-old kid to keep the records, it may not go well. One company actually hired someone with a Ph.D. in computer science; that went really well. To me, that indicates how serious they take it."

"He [Joyner] indicates that it's really easy to comply, right?" Douglas asked rhetorically. "'Good companies have no problem being in compliance or getting into compliance,' is what he said. That, to me, is perfectly inconsistent with his assumption that he's going to find underage performers, for one thing. If there's one thing we know, it's that people who intend to create actual child pornography, who use real children in their productions, don't keep 2257 records."

"The real problem with compliance and cross-referencing is in a true secondary producer situation," he added, "because there, you are not in control of your cross-referencing as to what titles the performer has been in. Let's say I am a performer and I have performed under one name and provided Company A with two AKA's ["also known as"] and failed to disclose a third AKA because I don't want them to know I'm working for a competitor. So then I work for the competitor; the competitor also provides the secondary with IDs, so they do have the ability to cross-reference because they've got the legal name, but based on the data that they're getting from the two primaries, they do not have an ability to cross-reference fully; they're going to have to do their cross-referencing from scratch, and that is incredibly onerous."

Both attorneys also found interesting the juxtaposition of the fact that Joyner and his team have not found a single underage performer at any of the 19 companies so far searched, but that the FBI intended to conduct "at least one inspection every two weeks, if not more" for the foreseeable future, all drawn from the bureau's database, which currently contains about 1,200 companies.

"All right; they've inspected 19 companies, and assuming an average of about—probably between seven and eight films per company; assume at least five performers per film, that's 40 times 19—they probably have looked at in the magnitude of 800 IDs," Douglas calculated. "They found exactly two of the 800, assuming my figures are close to being correct, who appeared to be underage, but they weren't. On that basis, why would you ever expect to find anyone underage?"

If they do two inspections a week, that would mean they're doing about a hundred a year, and that's just scratching the surface of the thousands of companies that are primaries, and once you include secondaries, as Congress is encouraging them to do, then you're talking about tens of thousands of producers," he continued. "With tens of thousands of producers, they would have to do a thousand a year in order to have any sort of significant impact, and as a nation, we cannot afford that, even if we do stop the Iraq war."

"What would happen if five years, ten years from now they've been doing this on a weekly basis, spending hundreds of thousands of dollars in taxpayer money, disrupting people's businesses, causing the industry to spend millions of dollars, and at the end of the day, they find nothing? Sooner or later, you have to stop being a psychotic and expect a different result when you repeat the same actions over and over again."

Reed Lee took that analysis a step further."I think a number of the people who have been instrumental in promulgating 2257 and its regulations have wanted this to be a waste of time; they've wanted this to be an artificial burden," he opined. "Those who legitimately are concerned about the exploitation of children need to consider whether we're not wasting a whole lot of resources looking at companies that have every incentive to avoid depicting a minor, because it's already a crime more seriously punished than the record keeping violations. Not only that, even if they are deceived—that is, even if they don't have the knowledge necessary for the government to convict them of producing child pornography, still, once it's known that they've been deceived, they've got to take the stuff off the shelves. They've got a warehouse full of stuff that they've got to destroy. None of the businesses that are being inspected now want to take that kind of financial hit. They have every incentive to avoid it."

"Here's the essence of our attack on 2257," Lee explained. "We agree that child pornography is not protected by the First Amendment. It is a category of unprotected expression, just like defamation is a category of unprotected expression. Child pornography, in order to be unprotected, has to depict actual children in sexual situations. Defamation in order to be unprotected has to be false. It has occurred to people that maybe the burden of proving truth or falsity ought to be on a defamation defendant; that is, a reporter or a speaker sued for defamation. And the Supreme Court said we can't have that under the First Amendment. The First Amendment means that the presumption is in favor of protection of expression, and these unprotected categories of expression come into play when the government or some other party claiming that expression is unprotected actually proves it's unprotected. The idea behind 2257 is to reverse that burden, and that is without precedent in our law. You know, the Ashcroft v. Free Speech Coalition case addressed the issue. There, the government said, 'We want to criminalize material that appears to be child pornography because it's just too hard to prove that it's an actual child,' and a majority of the Supreme Court said that's not a good enough reason."

"We simply conduct the inspections," Joyner said. "We cite the violations. We don't make the determination if it's going to be prosecuted or not."

In other words, Joyner and his team are just doing their jobs. However, the adult industry can only hope that the FBI inspectors, after inspecting perhaps a few dozen more legitimate companies and finding no underage performers, will let the Justice Department know that their mission has been accomplished... and with four well-publicized exceptions, had been accomplished for over 20 years.