The Free Speech Coalition's fight against the onerous and unconstitutional regulations under 18 U.S.C. §2257 got a little easier Monday as President Bush neatly torpedoed one of the Justice Department's claims regarding identification documents, and a right-wing legal think tank, in an ad on the New York Times Op-Ed page, seemed to support getting rid of the regs altogether.
"Now, the problem we have is you got some person out there in central Texas needing a worker, and he can't find a worker, an American," President Bush said in a speech on immigration reform delivered at the Hyatt Regency Irvine on Monday. "... And so he says, why don't you send somebody over to help me? And they show up and they put a Social Security card out there and it looks real. You know, our small business owners are not document checkers. These are people trying to get ahead, and it's impossible ... to really effect the enforcement of our laws if people are able to use forged documents."
"Now, we've increased the amount of manpower there to hold people to account for hiring illegals," the president continued, "but it is difficult to hold somebody, an employer to account if they're putting false papers on -- the truth of the matter is, what's happened is people are trying to come in this country and we got smugglers smuggling them in... These smugglers are coyotes, they're kind of preying on innocent life, and they've got a whole document forgery industry going on... That's why I'm for a temporary worker program ... that says to a person, here is a tamper-proof card that says, you can come and do a job an American won't do, fill a need. A tamper-proof card all of a sudden makes interior enforcement work. In other words, we now know who's getting the cards and we know they can't be tampered with. So the guy says, show me your tamper-proof card before I hire you. And if they do, fine. But if they don't, say, I'm not hiring you. You got to have the card to get work." [Emphasis added]
But despite President Bush's recognition that "our small business owners are not document checkers," the U.S. Department of Justice will hold some employers to account if it turns out that people they have employed have used "false papers": The adult industry.
It's well known in the adult industry that the four minors who managed to pass themselves off as adults over the past 20 years and appear in adult movies, including the famous Traci Lords, all had presented authentic-looking forms of identification, including driver's licenses and passports. But if an adult producer were to accept such false identification and proceed to use a minor in a sexually explicit production of any sort, that producer could be prosecuted under both the 2257 regulations and the anti-child pornography statutes and could be imprisoned for decades – all for relying on documents that President Bush has now said that employers should not be held accountable for relying on! And since a government-issued "tamper-proof card" is not currently available, it's difficult to understand how the Justice Department could prosecute adult industry members for accepting false identification that the president says every employer – including, implicitly, adult industry employers – should get a pass on!
The other bright spot in the news was the Washington Legal Foundation's (WLF) ad on page A23 of Monday's New York Times. The WLF's mission, according to its website, is to "commit our resources to working with our friends in government and our legal system to maintain balance in the Courts and help our government strengthen America's free enterprise system." In practice, that means that the foundation files amicus briefs opposing, for instance, attorneys' fees in citizens' class action lawsuits, and in favor of the courts "cracking down" on "frivolous" lawsuits filed by individual plaintiffs against multinational corporations.
Titled, "Amnesty for Honest Businessmen," WLF's ad was part of its continuing series, "In All Fairness," and this time, the foundation was concerned that the federal government seemed to be favoring the rights of illegal immigrants over the rights of legitimate businesses.
"Honest business owners and employees face a network of government prosecutors and bureaucrats who draft, interpret, and enforce mind-numbingly complex rules," the ad's second paragraph begins. "This drastic expansion of federal control over our lives has spawned over 11,000 regulations that can be criminally enforced against any legitimate commercial activity. On top of that, add the laws and regulations of 50 states, plus countless plaintiffs' lawyers eager to pile on with multi-million dollar lawsuits."
"Many regulations are so confusing that they can turn any honest business person into a criminal even without a prosecutor having to show any criminal intent," the ad continues. "Any misstep, even as innocuous as failing to file the required paperwork, can have ruinous consequences. Rather than assist American businesses that must navigate this imposing gauntlet, unelected regulators now all too often play an arbitrary game of 'gotcha,' turning to criminal prosecution for minor regulatory infractions instead of using far more appropriate administrative or civil remedies." [Emphasis added]
Any of that sound familiar? Any of that sound un-American? The Washington Legal Foundation (www.wlf.org) obviously thinks so.
At the very least, the ongoing litigation in Free Speech Coalition v. Gonzales has shown that the 2257 regulations are "so confusing that they can turn any honest business person into a criminal even without a prosecutor having to show any criminal intent" – such as when an adult producer accepts a minor's fraudulent identification and uses that person in a sexually explicit production – and the Justice Department has held firm on positions under its 2257 regs, the inevitable result of which would be that "[a]ny misstep [by an adult producer], even as innocuous as failing to file the required [2257] paperwork, can have ruinous consequences" – like five years in prison and thousands of dollars in fines for a first conviction.
First Amendment litigation is always interesting – but it's even moreso when your opponents, including the president of the United States, freely (and no doubt unwittingly) provide ammunition that helps you win your case.
Maybe Free Speech Coalition should ask the Washington Legal Foundation to file an amicus brief on the industry's behalf?
