Perhaps Senator Orrin Hatch's (R-Utah) new bill, S. 2140 – the "Protecting Children from Sexual Exploitation Act of 2005" – will teach Hollywood that it doesn't score any points in Congress by being timid on sexual free speech issues.
Mainstream movie producers failed to support Free Speech Coalition's successful lawsuit against portions of the Child Pornography Protection Act, and in what may be thought of as karmic repayment, Sen. Hatch's bill would require 2257 records and labeling on "any book, magazine, periodical, film, videotape, or other matter that (1) contains one or more visual depictions of simulated sexually explicit matter; and (2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce."
But whereas Rep. Mike Pence's (R-Ind.) Child Pornography Prevention Act of 2005, now a rider to the Children's Safety Act of 2005 (H.R. 3132), simply eliminated the word "actual" as a modifier for the "sexually explicit conduct" that triggers the need for a 2257 record and label, Sen. Hatch's bill proposes creating an entirely new section of the law: 18 U.S.C. §2257A, "Recordkeeping requirements for simulated sexual conduct."
Hollywood's 2257A requirements would be pretty much the same as the adult industry's 2257 duties: "[A]scertain, by examination of an identification document containing such information, the performer's name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations" (Will the front page of the National Inquirer do?); and "ascertain any name, other than the performer's present and correct name, ever used by the performer including maiden name, alias, nickname, stage or professional name ("Alan Alda," meet Alphonse d'Abruzzo; "Carmen Electra," meet Tara Leigh Patrick), as well as index such records so that they're "individually identifiable."
One interesting difference between naked Hollywood and explicit XXX is that, for mainstream performers, "No information or evidence obtained from records required to be created or maintained by this section shall, except as provided in this section, directly or indirectly, be used as evidence against any person with respect to any violation of law." (Tax fraud? Child custody suits? Guess Hollywood will have to see how that shakes out in practice.)
A couple of exceptions to the above are that a mainstream performer simulating sex could be prosecuted under this section for either failing to provide correct identity information or for obscenity. However, as former MPAA president Jack Valenti noted, no Hollywood film has been busted for obscenity since Carnal Knowledge, and that prosecution failed.
Contrary to what was reported here yesterday, the text of Sen. Hatch's bill fails to cure the "secondary producer" problem currently under challenge in federal court. In regard to actual sexually explicit conduct, S. 2140 defines "produces" as "(i) actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being; (ii) digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or (iii) inserting on a computer site or service a digital image of, or otherwise managing the sexually-explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct."
Note that paragraphs (ii) and (iii) target people who probably have no hands-on contact with the performers of sexually explicit conduct, and therefore would be classified as "secondary producers" even under the latest iteration of the 2257 regulations.
Finally, the Hatch bill creates punishments for failing to comply with every detail of the 2257 and 2257A laws: One year in prison and/or an undetermined fine.
Of course, it's worse if inspectors find that an actual minor has been involved: "Whoever violates this section in an effort to conceal a substantive offense involving the causing, transporting, permitting or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct in violation of this title, or to conceal a substantive offense that involved trafficking in material involving the sexual exploitation of a minor, including receiving, transporting, advertising, or possessing material involving the sexual exploitation of a minor with intent to traffic, in violation of this title, shall be imprisoned for not more than five years and fined in accordance with the provisions of this title, or both."
Second offenses are significantly worse.
Assuming this bill doesn't get attached to some defense appropriation bill or Katrina relief bill, its sponsors, Sens. Hatch and Sam Brownback (R-Kan.) will wind up in conference with, among others, Rep. Mike Pence and his co-sponsors to work out the differences between the bills – one that will likely see the "hate crimes" rider currently appended to the Children's Safety Act removed, as the right-wing religious groups have been agitating for, for several weeks. However, nothing is likely to happen before Congress reconvenes after the holiday recess, so stay tuned to this site for further developments.
