In a brief filed last Friday with the U.S. District Court for the District of Colorado, Assistant U.S. Attorney Kurt Bohn argued that the mere existence of the recordkeeping and labeling law, 18 U.S.C. §2257, has protected minors from becoming involved in sexually explicit conduct – even though, in the 10 years of the regulations' existence, not one inspection of such records has taken place.
The government's brief also fails to address in any meaningful way the basic problem of 2257: That it implicitly criminalizes all sexually explicit depictions that do not have the required records as "child pornography," thereby shifting the burden that the government should legally have – of proving beyond a reasonable doubt that the material contains underage performers – to the defendant to prove that the material is child-free and therefore constitutionally protected.
"Discovery has powerfully confirmed the already evident importance of section 2257 and the implementing regulations to protecting children from exploitation," Bohn claimed in the government's "Trial Brief In Opposition To Plaintiffs' Motion For Preliminary Injunction." "In response to discovery requests, plaintiffs identified 86 websites (out of hundreds of thousands of websites with sexually explicit material), no film producers, and only one magazine that have shut down or purportedly will have to shut down as a result of the regulations."
The government's reasoning behind this is the proliferation of websites with "teen" or "amateur" or similar terms implying youth in their URLs that are still operating, and after all, they wouldn't still be online if their webmasters didn't have the paperwork to prove that the models weren't underage, would they?
"[R]egardless of the age of the subjects on those particular sites, the websites demonstrate the importance of a universal age verification requirements both because of the obvious demand to which those sites are pandering, and because the subjects on the sites, judging by their looks alone, could easily be under 18," the brief argues.
The government then cites an opinion by the Sixth Circuit Court of Appeals in the Connection Distributing v. Reno case – a case which is currently under remand to the federal district court – that "The entire point of the Act is to prevent subjective determinations of age by implementing a uniform procedure that applies to all performers."
However, unless the government plans to examine every record kept by every adult company for every feature made and every Web page posted since July 3, 1995 – a gargantuan undertaking, to say the least – at some point, some government inspector will have to make a "subjective determination of age" in attempting to prove that an underage person was employed in making the depicted "actual sexually explicit conduct" – but that fact seems to have escaped the brief writer's attention.
Moreover, sources familiar with the picture identification documents presented by the four identified underage performers who managed to defraud adult producers into using them indicate that those IDs would have appeared perfectly acceptable under the 2257 regulations – thereby invalidating the government's claim that 2257 protects minors from engaging in recorded sexually explicit conduct.
Laughably, the government also argues, "The fact that plaintiffs are mounting a facial challenge to a statute that has been in place for more than a decade further compounds their burden."
What's even funnier is that, although the Justice Department (DOJ) put regulations in place 10 years ago, never conducted one single inspection under them and never used them to identify one single underage performer, it nevertheless claims that new regulations are necessary to accomplish the goals of the Act!
"The Department of Justice, moreover, 'narrowly tailored' the regulations in a very literal sense by making significant alterations to them in response to public comments," the brief argues. Hopefully, DOJ attorneys will be able to explain to Judge Walker D. Miller how prohibiting non-U.S. citizens with valid foreign passports from working in adult features is an example of the regulations' "narrow tailoring."
"As plaintiffs concede, section 2257 and the implementing regulations do not prohibit any speech," one argument begins. "They require only that producers, publishers, and manufacturers of visual depictions of people engaged in sexual activity verify that the participants are 18 or older, maintain records of that verification, and affix a label to the material identifying where the records are located."
However, since Free Speech's lawsuit is about the effect of the regulations on chilling speech, it is somewhat disingenuous for the government to talk about prohibiting speech.
Or as FSC's own brief puts it, "To be sure, §2257 expressly prohibits no expression at all. But as the declarations show, the statute and its regulations so seriously burden all sexually explicit expression that they amount to, and must be analyzed as, an outright ban. ... The public interest in protecting actual children from participation in pornography is substantial and compelling. But that interest does not justify imposing substantial burdens on a vast amount of presumptively protected explicit expression merely because some of that expression might look like child pornography. This is especially true here, where the statute is so seriously overinclusive and burdensome."
Free Speech Coalition witnesses deposed by the government have already testified that these requirements "only" force adult companies to spend millions of dollars, use warehouses full and terabytes of storage space, and face a minimum of five years in federal prison if the records are even slightly defective or merely improperly indexed.
"[E]ven assuming the accuracy of every allegation that plaintiffs have made concerning the purported burden of the statute and regulations, there would remain 'ample alternative avenues of communication' for depicting sexually explicit activity," the brief says. What that refers to is simulated sex such as can be seen on late-night cable – but the government fails to mention that even those producers could be called upon, under 2257, to prove that the sex acts shown were in fact simulated.
"Plaintiff New Beginnings, a wholesale distributor of pornography, asserts that the labeling requirements that apply to distributors are unduly burdensome, cataloguing the hours that will purportedly be required to comply," the brief argues. "The same labeling requirements, however, have been in place since 1992. Since that time, according to the deposition testimony of its president, New Beginnings has sold at least one million and potentially well over one million copies of sexually explicit films, all purportedly without committing a single violation of the statute."
The key word, of course, is "purportedly." Since the government has never officially inspected the label on any adult product, it actually has no idea whether New Beginnings has committed "a single violation of the statute" or hundreds of thousands of violations, which could have resulted in several life sentences for New Beginnings' owners.
Disingenuously, the brief claims, "The complaints about labeling are [sic] also appear to be based upon the false premise that any sale of a movie that contains any error constitutes a crime. In fact, the statute and regulations prohibit only the knowing distribution of unlabeled material. This is yet another reason why the statute and regulations will not in any way prevent companies such as New Beginnings from continuing to sell movies or other material."
As DOJ attorneys should well know, under prior court decisions, adult retailers and distributors are presumed to know the contents of the products they sell, and have been held accountable for their ignorance in several prosecutions on both the federal and state levels.
Regarding the costs of complying with the recordkeeping requirements, the government brief claims, "Use of even a basic database program, such as MS Excel, could have significantly reduced the expense by eliminating the need for any paper except for the identification copies. Moreover, scanning the identification copies into PDF and e-mailing them could have reduced the cost almost to 0."
Trouble is, since no producer's records have yet been inspected nor any producer prosecuted for recordkeeping violations, and knowing the government's abhorence of the adult industry, adult businesspeople have no reason to believe that a "basic database program" will provide sufficient flexibility to satisfy the government's recordkeeping demands.
"Moreover," the government says, "regardless of New Beginnings’ ability to use digitized boxes for previously acquired movies where it lacks records, section 2257 and the regulations impose no restrictions on various common methods of advertising sexually explicit films, including (a) identification of and information about the performers, (b) pictures from the films and box covers that do not depict sexually explicit activities or covers that have such material redacted, (c) a description of the number and type of sex scenes in the movie, and (d) plot synopses where applicable."
In other words, the government's solution to advertising sexually explicit films is not to use sexually explicit images in the advertising – brilliant!
As far as performers' privacy concerns, the brief claims, "Plaintiffs assert that the regulations will violate the right to privacy of performers by requiring primary producers to provide personal identification information to secondary producers. Defendant previously pointed out that the constitutional right to privacy is wholly inapplicable in this context, and plaintiffs exaggerate the threat by exaggerating the number of producers that would have to be provided with this information. To avoid any potential risk to privacy, however, primary producers can simply redact information that is unnecessary to verifying a performer’s age from the copies that they provide to secondary producers. Unnecessary information would include a performer’s residential address and their day and month of birth (unless the performer is 18 as of the date of the performance)."
This tactic would, of course, require that "primary" producers not only keep and index the records, but maintain a separate set of "redacted" (censored) copies to provide to "secondary" producers – in other words, do twice as much work and incur twice as much expense. And the brief doesn't even touch on the problem faced by performers who netcast their own bedroom cams, where the required labeling would force them to disclose their own real identities as "custodian of records" and their home address as the location where the records are stored.
Free Speech Coalition has filed its own brief in support of its motion for preliminary injunction, and one paragraph of that, minus the legal citations, is worth quoting here:
"The underlying purpose of the federal record-keeping requirement is, and always has been, to protect children from being involved in child pornography. For several reasons, a preliminary injunction against the enforcement of 18 U.S.C. §2257 and 28 C.F.R. Part 75 will not undermine this objective. First, by its very terms, the §2257 record-keeping requirement applies to material that depicts adults, not children. As such, not a single child stands to be spared by the statute and, conversely, not a single child will be harmed if the record-keeping requirement is temporarily enjoined. Second, the vast majority of the speech impacted by the regulations is already in existence. Thus, prohibiting enforcement of the new rules for a brief period of time will not result in any additional harm to children, but will, at most, permit protected expression to remain in the stream of commerce. Third, issuance of a temporary restraining order will do nothing to frustrate the government’s stated goal of extinguishing child pornography. The government remains free to utilize its most effective tools, which include federal prohibitions against the production, possession, and dissemination of sexually explicit depictions of children, to investigate and prosecute those who endanger real juveniles. And finally, the government cannot seriously claim it will suffer, given that it has failed to instigate even a single records inspection in the seventeen years §2257 has been on the books. As a result, the threatened injury to Plaintiffs’ First Amendment rights greatly outweighs any potential harm to the government should the record-keeping requirement be preliminarily enjoined."
