The Children's Safety and Violent Crime Reduction Act of 2006, H.R. 4472, has been placed on the calendar of the U.S. Senate for a vote, and since it's minus the anti-hate crime legislation of H.R. 3132 but with the exact same restrictions on the adult industry (under the misleading title "Child Pornography Prevention"), passage is almost assured.
Both H.R. 3132 and H.R. 4472 were introduced by one of the House's most conservative members, F. James Sensenbrenner, Jr., though the anti-adult industry provisions were written by Rep. Mike Pence and originally introduced as a separate bill. However, less than two days after Pence introduced his bill, its language was incorporated into the larger 3132, and later its successor – all without the benefit of those provisions ever having been subject to either public or congressional hearing.
The Congressional Record for March 8 reflects objections by Rep. John Conyers regarding the elimination of his hate crimes amendment from 4472, and Rep. Jerrold Nadler decries the removal of his prohibition against child molesters possessing guns. Sensenbrenner responded by claiming that the current bill eliminates "the poison pills that have caused the essential legislation to be stalled in the other body" – namely, the Conyers and Nadler amendments.
H.R. 4472 has 37 co-sponsors, and was passed under a rules suspension motion by Sensenbrenner. The bill now stands at No. 378 on the U.S. Senate's calendar.
H.R. 4472 has essentially the same deceptions and flaws as its predecessor. For starters, in Sec. 601, "FINDINGS," deals entirely with the production and distribution of child pornography; sexually explicit materials made by adults for adults is not even mentioned. Hence, to the extent that the bill affects the production of adult videos, websites and the like, there are exactly zero congressional findings to support those measures.
Much has been made of Sec. 603, "ADDITIONAL RECORDKEEPING REQUIREMENTS," which creates a new U.S. Code section 2257A, which is titled "Recordkeeping requirements for simulated sexual conduct." These new requirements would apply to "any book, magazine, periodical, film, videotape, or other matter which ... contains a visual depiction of simulated sexually explicit conduct" – in other words, practically every R-rated movie that Hollywood releases.
But there's a catch; one that makes the legendary Catch 22 pale in comparison.
Sec. 602 of this bill, deceptively titled "STRENGTHENING SECTION 2257 TO ENSURE THAT CHILDREN ARE NOT EXPLOITED IN THE PRODUCTION OF PORNOGRAPHY," amends the current recordkeeping requirements under §2257, so that that law would now read, in pertinent part, "As used in this section ... 3) the term 'produces' means to produce, manufacture, or publish any book, magazine, periodical, film, video tape or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity with respect to which the Attorney General determines the record keeping requirements of this section are not needed to carry out the purposes of this chapter." [Emphasis added]
Aside from the unconstitutional effect of putting the 2257 recordkeeping requirements solely at the whim of Alberto Gonzales, Sec. 602 is clearly meant to be the Hollywood loophole, included to prevent the mainstream movie industry from opposing the bill. Essentially, it would allow the Attorney General of the United States, at his sole discretion, to exempt any mainstream production that depicts simulated sex from the requirements of Sec. 603 to keep 2257 records of the participants in that activity. Of course, that may not hold true for all Hollywood productions. For instance, the next Steven Spielberg epic could be exempted from the 2257A requirements, but future MRG productions, which currently dominate late-night Cinemax and Showtime fare and which often feature adult industry performers, might not be exempted – and there doesn't appear to be any mechanism that would allow the production company to know beforehand whether it is required to keep the records or not!
Even more outrageous are the later sections of the bill. Take Sec. 605, "AUTHORIZING CIVIL AND CRIMINAL ASSET FORFEITURE IN CHILD EXPLOITATION AND OBSCENITY CASES." Sec. 605 would exchange the bulk of 18 U.S.C. §1467's provisions for those contained in the forfeiture section of the Controlled Substances Act – an unsubtle attempt to equate First Amendment-protected sexually explicit materials – and, of course, child porn – with illegal drugs. More importantly, however, it would give the government the power to forfeit the property of anyone convicted under 18 U.S.C. §2252B ("Misleading domain names on the Internet") or the labeling and recordkeeping requirements of §§2257 and 2257A. Also eligible for forfeiture under the new law would be the property of anyone convicted of any form of sexual abuse (18 U.S.C. Chapter 109A), "or any property traceable to such property" — although, oddly, forfeiture for interstate transportation for purposes of prostitution or for sexual conduct with minors would be written out of the current law.
But the biggest threat to sexually explicit adult productions would be Sec. 606, "PROHIBITING THE PRODUCTION OF OBSCENITY AS WELL AS TRANSPORTATION, DISTRIBUTION, AND SALE." As everyone reading this website should know by now, it is impossible to ascertain whether a particular sexually explicit work is legally "obscene" until such work is put on trial, evidence presented and a verdict rendered by either a judge or jury.
What Sec. 606 purports to do is to bypass that entire trial process by amending 18 U.S.C. §1465 to criminalize not only the "transportation of obscene matters for sale or distribution" (the section's current title) but also the production of "obscene matters" for sale or distribution. H.R. 4472 would recast the operative wording of §1465 to read, "Whoever knowingly produces with the intent to transport, distribute, or transmit in interstate or foreign commerce, or whoever knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934) in or affecting such commerce, for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both." [Change in italics]
Such "knowledge" that one is producing "obscene matters" is a virtual impossibility, since obscenity is everywhere a local issue, and what a jury in one area may find obscene may be found to be protected in another area – or even in the same area at a different time!
Similarly, §1466, "Engaging in the business of selling or transferring obscene matter" would be amended to include knowingly "producing with intent to distribute or sell ... obscene matter" – another legal near-impossibility.
But with conviction under the revamped §§1465 and 1466 extremely unlikely, the question becomes, what is the purpose of these changes? The answer probably lies in the U.S. Supreme Court's recent ruling in Gonzales v. Raich, the medical marijuana case. In that decision, the high court found that even if medical marijuana were produced and sold solely within a particular state – in this case, California – that had legalized the possession and use of the substance, federal law enforcement authorities nonetheless had the power to seize said pot because the mere existence of the putatively legal marijuana affected the interstate commerce of the substance, even though that commerce was illegal, and the feds therefore would have jurisdiction under the interstate commerce clause of the U.S. Constitution.
Therefore, under that logic (for which the otherwise right-thinking Justice John Paul Stevens, who authored the Raich opinion, should feel ashamed), even though a particular sexually explicit adult video might be considered constitutionally protected speech in one portion of the country, the fact that it might be considered obscene in some other area would be deemed sufficient grounds to allow federal marshals to shut down its production before the feature is even completed!
Clearly, under the jurisprudence of a pre-Roberts/Alito Supreme Court, such contortion of the First Amendment would quickly be thrown out of court, but now, who knows? Therefore, members of the adult entertainment community should urge their senators to vote against H.R. 4472 and its sponsors' attempts to destroy the adult industry.
