It was standing room only at Free Speech Coalition's (FSC) general meeting Thursday night, and the vast majority of the attendees apparently were not there primarily to meet the organization's new federal lobbyist, Aubrey King, nor its new Public Relations Director, Tom Hymes.
King, an 18-year veteran lobbyist, was introduced by FSC Executive Director Michelle Freridge, and he gave a brief outline of some of the problems he expected to face at the adult industry's representative on Capitol Hill.
"Our challenge is going to be to get our story out there in Washington," King explained at the gathering at the Warner Center Marriott. "There's a lot of misunderstanding, a lot of misconception about the nature of adult entertainment, about what happens and what doesn't happen in the industry. I've been meeting with folks on Capitol Hill, members of Congress and their staffs to try to convey that message ... that we want to work with you, we want to educate you – that is, Congress, folks in the administration, and we want to let you know more about this industry... Frankly, you've got some folks back there that really don't like you much, who are really determined to put you out of business."
Freridge next introduced Hymes, the former editor of AVN Online, who noted that his new job would be a welcome change from the fast-paced race to get a magazine out by deadline, but that he knew he would be facing many of the same political issues.
"I've always been outraged at the idea that adults have felt they could tell other adults what they can and cannot watch or make," he noted. "I find it absolutely outrageous, and we're still faced with that right now."
Hymes said that in addition to his public relations duties, he would also be helping to develop position papers and white papers and other official statements from the industry.
The meeting was then turned over to the three attorneys in the room – Jeffrey Douglas and Reed Lee, both FSC board members, and Allan Gelbard, a former board member, all of whom devote much of their practice to free speech issues – for the purpose of answering questions on the newly revised record-keeping and labeling regulations under 18 U.S.C. §2257.
Douglas began by warning the audience that all industry attorneys were still in the process of digesting the new regulations, so that all answers given that evening should be followed by a mental asterisk that says "tentatively."
Douglas assured the audience that Free Speech was already preparing lawsuits to challenge the regulations, and that those suits would be filed before the effect date of the changes, June 23, 2005.
Along the way, answers were given to questions such as the legality of using performers with foreign government-issued IDs in the U.S. (it's a no-no under the new rules); whether the government will try to apply the new ID rules retroactively (probably); whether the lack of privacy surrounding who must keep IDs will drive performers out of the business (that's the idea, Gelbard opined); the necessity of keeping separate records for compilations (yes, they're necessary); and whether the Justice Department is likely to be willing to compromise on some of the requirements.
As to that, Gelbard answered, "This is a situation where the Justice Department has tried to put a minefield in front of you, and hoping that you'll step on it and kill yourself... This is the Justice Department and its administration throwing a bone to the conservative right, so even if they lose [in court] ... it makes them look good to try."
The requirement that every time a Web page is changed, a copy of the previous version must be kept for at least seven years (as is the case with any other image to which 2257 applies) led to the airing of an interesting statistic.
"We did some calculations ... on the amount of storage space that it would take to maintain copies of streaming video," Lee said. "Assuming you've got a Web site that's doing 12 parallel streaming videos, 24 hours a day, seven days a week for the seven-year minimum that you're required to keep the records ... we're talking about 500 terabytes worth of information. We said that to the Justice Department; they said we haven't given them evidence of burden. Okay; we'll give it to the court."
Several questions had to do with Web sites and the duties of webmasters to keep records, which led to discussion of the "secondary producer" concept that's been at issue ever since Sundance Associates, publisher of swingers magazines, sued Attorney General Janet Reno in the mid-1990s over its duty to keep advertisers' records.
"If you have a Web site like a friends' networking site or a dating site such as MySpace or AdultFriendFinder or RateMyRack, would I basically – anybody who wants to submit a photo to those sites, I should probably have sign a model release?" someone asked.
"Under the regulations, somebody from your organization has to inspect their documents and verify, under penalty of perjury, that they've done so and that they appear to be true and correct," Gelbard responded.
"In person," Douglas added.
"So unless they want to come out to California and show you their documents, they're S.O.L. [shit out of luck]," Gelbard said.
Douglas then noted that the regulation only applies to images of sexually explicit conduct, and that nudity isn't covered by the regulations.
Toward the end of the evening, the conversation turned to some of the subtleties of the law that can led to five- or 10-year prison sentences.
"To make this more specific, let's say I'm a distributor and I have 100,000 DVD titles, and new titles are coming in by scores every day," Douglas hypothesized. "And I then sell it to a retail outlet in Maricopa County. If one of those titles that's going through me has, in six-point type, a label that says, 'All records required by 18 U.S.C. §2257 are in the custody of Custodian of Records, P.O. Box da-da-da,' you've committed two separate felonies when you transmit that, because it doesn't have the legal name of a human being on it ... and it has a P.O. box."
"With a good lawyer, you might avoid consecutive sentences," Lee added. "But you're still up for at least five years."
One of the evening's few heartening answers was that if inspectors come in and do find what they consider to be violations, the company owner won't be arrested on the spot – "unless you've got cocaine on the desk, an automatic weapon in your pocket, or ... a dirk or dagger, a knife that is concealed," Douglas explained.
The final question, from a veteran video producer, brought home the enormity and complexity of the impending problem.
"As a producer with over 400 shows," he asked, "with valid IDs for every performer filed by the title of the show, medical records and two pieces of ID, what more can I do?"
"The first thing I've got to say to you is, if you have your HIV test in the same file as you have the declaration and the photo ID, you've committed a felony," advised Douglas.
"You also said you have it filed by the show," added attorney Allan Gelbard. "You've committed a felony."
"Basically, I know that every sane human being doesn't want to hear this from a lawyer," Douglas summarized, "but it is suicidal madness for anyone who's producing not to pay a fuckin' lawyer (who knows what they're doing) not to come and take a look and check it out, because no matter how smart you are, no matter how hard you do the research, it is first of all virtually impossible that you can have it all together. There are just too many rules, too many applications, and there's not like a place that you can go and read the rules. So much of it has to do with what the Justice Department interpreted ALA v. Reno to mean, versus Sundance, and all this crap. Hire a lawyer to take a look; it's worth it."
"You have to do everything," Douglas continued. "If you do 99 percent of it right, it means you can go to prison. This is not a good-faith attempt... What this law, the rationale behind this law is that it is presuming that every film you make, every photograph you take is child pornography, and you have to prove to this irrational level that it's not. That is at the heart of any challenge that this organization is going to make, because the ideal way for us to deal with 2257 is, as Reed Lee was the first person I know to make this argument, destroy it altogether.
"Ultimately, we cannot live with this. It would be great if we can cut out most of the cancerous parts, but fundamentally, it needs to be destroyed, and there's a good reason it should be destroyed in its entirety because of the first thing I said: It is presuming that constitutionally protected speech is a crime, and you have to prove it's not. That is at the antithesis of everything that American jurisprudence is supposed to be about.
"... [Even with 2257] Traci Lords would have been able to make every movie she made because she had California ID and she had a U.S. passport that were 100 percent valid; fraudulently obtained, but valid. Nothing in the world would have changed, at least as far as I know, with all four of those people. 2257, the judge in the first litigation on the case, asked the Justice Department what was the justification? 'To deter and detect child pornography.' The judge said, 'I don't understand how it does either.' Justice Department attorney: 'Well, judge, you're probably right.' Okay? Live with the fact this is not rational, it's pure hostility, and to set arbitrary rules designed to trap the unwary, just like everybody said. And you've got to wrap your mind around the fact that it's unreasonable, it's irrational, and unless we're able to destroy it altogether, it's going to be something you're going to have to adapt to.
Douglas added, "It's gonna cost you lots and lots of money, it's gonna be a major-league pain in the ass; you cannot afford to have your 2257 czar change jobs every six months. It's perhaps the single most important position you can have in your company, is the person that's in charge of 2257, and I can tell you from my experience of doing hundreds of consultations, that maybe five companies are doing that part right, where the person in charge of 2257 is paid well and is given the resources that they need. You just can't live with that anymore."
The attorneys stayed to answer questions for several minutes after the meeting officially adjourned, but from the grimaces on some faces in the crowd, the point had been made.
