The amended regulations implementing 18 U.S.C. §2257, due to go into effect June 23, 2005, are sure to have generated many lawsuits by the time this article hits the streets. Certainly the principal reason for the litigation is that the Department of Justice has renewed its attempt to require "secondary producers," as defined in the regulations but not the statute, to keep and make available the records; and there are a number of other reasons why the DOJ is sure to find itself embroiled in protracted litigation. To its credit, however, at least the Department agreed that the effective date of §2257 is July 3, 1995, as it promised back then. And, as explained in Legal Commentary in this month's AVN Online, perhaps the most dramatic impact of the regulations will be on the Web.
The revised regulations will cause as much or more confusion and burden than they alleviate. And because of that, producers are making a beeline to their attorneys' offices.
This headache has been with the Industry since 1988, some may recall, when the original incarnation of §2257 was enacted in response to one of the recommendations of the 1986 Final Report of the Attorney General's Commission on Pornography, spearheaded by Edwin Meese III, perhaps the most committed porn-fighting attorney general in history. The original version of the statute, enacted as part of the Child Protection and Obscenity Enforcement Act of 1988 (itself buried in nearly 300 pages of the "Anti-Drug Abuse Act of 1988"), was, after being struck down in the courts, resurrected in 1990 as the "Child Protection Restoration and Penalties Enhancement Act of 1990" (this one buried in the nearly 200 pages of the "Crime Control Act of 1990"), and finally was beefed up as part of the 2003 "Amber Alert" law, officially known as the PROTECT Act.
One of the requirements of the PROTECT Act was that the attorney general report to Congress about the enforcement of, among others, ?2257. The first report explained that it had not been enforced at all because the regulations needed updating. As then promised, in June of 2004, proposed updates were published, and now have been finalized, subject to some modifications.
Of particular concern is how close to the vest the DOJ has kept all of this. In the first place, after blasting a press release on May 17, 2005, "Attorney General Alberto R. Gonzales Signs Rule Implementing Provisions of The Child Protection and Obscenity Enforcement Act," the Department's Office of Public Affairs completely stonewalled everyone – there was not a peep about the content of the new regulations until the morning they were published, 10 days later. An even bigger mystery lies in the content of the public comments that the Department solicited. Together, AVN, the First Amendment Lawyers Association and the Free Speech Coalition were able to obtain copies of only three sets of comments: The ones drafted by Michael Bamberger for the Media Coalition, the ones submitted by this author, with the capable assistance of Larry Walters, and FSC's own comments, principally drafted by Reed Lee. As it turned out, there were at least five dozen sets of comments submitted, all of which are now buried somewhere in the bowels of the Department of Justice; and a cynic might argue that the comments have been kept under wraps because of the assistance that they might provide to those who will be challenging the regulations in court.
As to the substance of the new regulations, here are the highlights of the more important changes:
•The bombshell is that the Department has reinstated the requirement that "secondary producers" maintain, index and make available copies of the records. The Department rejected the documented concerns about performers' privacy and the identity theft, and more significantly, the decision in Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), in which the court held that the statute did not authorize the attorney general to impose such a requirement on secondary producers. In response to the public comments (including all three of those noted above) that objected to the regulations exceeding the authority of the Sundance case, the Department claimed,
"In contrast, the [District of Columbia] Circuit in American Library Ass'n. v. Reno [33 F.3d 78 (D.C. Cir.1994)] 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, particularly since secondary producers can comply by maintaining copies of the records of the primary producers, an option permitted by this rule. In so holding, the court implicitly considered the distinction between primary and secondary producers to be legitimate. 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."
The shortcoming of that analysis, as will be exposed in the avalanche of lawsuits that General Gonzales certainly will face, is that the American Library Association case rejected only a constitutional challenge to the "secondary producers" requirement; it did not address the issue of statutory authorization, nor was it called upon to do so. Specifically, in responding to the constitutional objection to the requirements imposed upon producers and secondary producers, the court in the American Library Association case noted, "Our inquiry, then, is whether the Act's record-keeping requirements are narrowly tailored to the prevention of child pornography." That inquiry has nothing to do with what the statute authorized in the way of regulations; rather, it had only to do with what the Constitution authorized. That a regulation is constitutional is not to say that it is authorized by Congress, the distinction between the two cases.
•Contrary to the revised regulations as originally proposed last year, the Department embraced the effective date of July 3, 1995, as the Department itself had promised back then. Some 33 sets of public comments, according to the Supplementary Information included with the regulations, objected to the proposed regulations to the extent that they turned back the clock, establishing the effective date as of the 1990 enactment of the amended statute. This is a significant victory concerning materials produced between 1990 and 1995.
•Another partial victory for those submitting public comments concerns the hours that the custodian must have the records available. As proposed, the new regulations required the custodian to be at the ready 10 hours daily – every day of the year. As modified, the requirement is a little more reasonable, but remains very onerous:
"Inspections shall take place during the producer's normal business hours . ... For the purpose of this part, 'normal business hours' are from 9 a.m. to 5 p.m., local time, Monday through Friday, or any other time during which the producer is actually conducting business relating to producing depiction of actual sexually explicit conduct. To the extent that the producer does not maintain at least 20 normal business hours per week, producers must provide notice to the inspecting agency of the hours during which records will be available for inspection, which in no case may be less than twenty (20) hours per week."
Although shaving the "normal business hours" to 9 to 5, from the original 8-to-6 requirement, and reducing the mandatory hours to 20 per week, the regulations as finalized leave in place the requirement that someone who produced only one qualifying image be regularly available at the producer's "place of business," even if that is a residence. And remaining is the problem of custodians taking vacations or becoming ill.
•The regulations maintain the requirement, newly added in the proposed regulations, that the records include copies of the materials to which the records pertain (e.g., the magazine, video tape, etc.) "[f]or any performer portrayed in a depiction after June 23, 2005." Presumably, that means a depiction printed or reproduced after that date, although arguably it could mean for any depiction photographed after that date. You should assume that a copy of the materials be included in anything reproduced from now on, just to be safe. This dramatically increases the burden on the producer.
•The new regulations maintain, over many objections, the requirement that the notice include, "The date of production, manufacture, publication, duplication, reproduction, or reissuance of the matter." Note, particularly, the "or" – you can choose which date to include, so if for example a compilation was produced on 15 different dates, you might want to select the single date of "reproduction" or "reissuance."
•The regulations with respect to DVDs appear to have been written by someone who has never viewed one. The Supplementary Information in the regulations explains,
"One commenter commented that the regulation should permit the statement to be located on main menu screen of a DVD, rather than requiring the statement to appear in the movie itself. The Department declines to adopt this comment. The statement cannot be severed from the actual depiction because that could lead to confusion on the part of the public as to the applicability of the statement in cases, for example, when there is more than one film on a DVD or when a movie on a DVD."
What about scenes, trailers, highlights, and other features of a DVD? Usually, whoever manufactured the DVD has custody of all of the records for everything on it, so a single statement should suffice. The revised regulations do not alter the confusion concerning DVDs, simply saying:
"In any film or videotape which contains end credits for the production, direction, distribution, or other activity in connection with the film or videotape, the statement . . . shall be presented at the end of the end titles or final credits and shall be displayed for a sufficient duration to be capable of being read by the average viewer.
"Any other film or videotape shall contain the required statement within one minute from the start of the film or videotape, and before the opening scene, and shall display the statement for a sufficient duration to be read by the average viewer....
"For all other categories not otherwise mentioned in this section, the statement is to be prominently displayed consistent with the manner of display required for the aforementioned categories."
You figure it out! Is a DVD a "film," as the release seems to indicate, or one of the "other categories not otherwise mentioned"?
•The public comments scored some minor victories, as well. Included are that parent and subsidiary companies no longer are required to keep records (which, properly analyzed, was an absurd requirement); that producers may rely upon the performers' representations concerning their aliases; that printers, film processors, video duplicators and the like are exempt form the record-keeping requirements ("Producer" does not include "[p]hoto or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplicators."); that the definition of "end credits" is clarified, but the absurd distinction requiring that the label be at the beginning of videotapes without end credits and with the end credits of videotapes including them remains; and that the font size now needs to be only as large as the second largest (not the largest) typeface on the material, so matching the 144-point font of the title is no longer required.
Fasten your seat belts! This is going to be an interesting ride.
(Clyde DeWitt is a partner in the Los Angeles, California-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN's offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
