Many of the adult entertainment industry's legal commentators have characterized 2006 as a particularly bad year. On the surface, it would be difficult to disagree. After all, 2006 marked the commencement of FBI inspections of adult entertainment businesses to assess their compliance with 18 U.S.C. §2257, the federal record-keeping and labeling regulations. By year's end, the FBI had inspected several companies and referred numerous 2257 violations to the Department of Justice for potential prosecution.
It was also a bad year for new laws specifically targeting adult entertainment businesses. For example, in July Congress enacted amendments to the 2257 regulations that dramatically expanded the types of content subject to the 2257 regulations. Depictions of mere nudity ("lascivious depictions of genitals or the pubic area") became subject to the 2257 regulations. Therefore, several major media operators did not consider the fact that the now-infamous photographs of Brittany Spears sans underwear broadly published late last year were depictions subject to record-keeping.
The same legislation also created a new set of federal record-keeping and labeling regulations, 18 U.S.C. §2257A, that made all the 2257 regulations applicable to depictions of merely simulated sexual activity.
These amendments also expanded the categories of activities that require a party to comply with 2257. For example, now merely uploading depictions subject to the 2257 regulations to a website or a computer site (or even just managing or maintaining a website or computer site containing depictions subject to 2257), imposes all of 2257's obligations. This means a large number of non-adult entertainment websites that posted Ms. Spears' commando performance likely did so in violation of 2257's record-keeping and compliance-statement regulations.
Also among the new anti-adult-industry regulations enacted last year was an amendment of the federal obscenity law that, for the first time in U.S. history, criminalizes the mere production of sexually explicit depictions that later are found to be obscene. This presumably means performers, models, photographers, and videographers all could be subject to obscenity prosecution just for creating hardcore, sexually explicit photographs or motion pictures after July 26, 2006.
Despite these hits, however, there is good reason to be optimistic about the industry's future legal prospects.
A gift from the industry's enemies: the midterm election results
Who would have thought, after all the bad adult industry news generated by the Bush Administration and its religious conservative supporters in Congress during the first 11 months of 2006, those very same folks would be the reason we now have a Democrat-controlled Congress? As improbable as it may seem, this is exactly what the industry's Republican enemies did. Most political analysts attribute the election results to widespread dissatisfaction with the president and his administration, and the public's outrage over numerous Republican scandals.
There's even more potential good news resulting from last year's rout of the Republicans: Congress now is less likely to try to reinstate all the onerous provisions of the 2257 regulations if the Free Speech Coalition is successful in its court case seeking to invalidate 2257. Similarly, if the Child Online Protection Act is ruled unconstitutional, Democrat legislators are far less likely to try to replace the law with one that Republicans would like, if Democrats seek to replace the law at all.
Many also hope that Democrat control of Congress will decrease the probability the government will unleash a broad wave of prosecutions of adult businesses and their principals. While that may happen, it will not be the result of any direct congressional action, as Congress does not have the direct authority to control federal law-enforcement actions. Any decisions regarding obscenity or 2257 prosecutions are made at the DOJ, which is an executive department under the control of the attorney general and, ultimately, the president.
Consequently, the industry now must consider the possibility that the president might order the DOJ to commence prosecution of adult entertainment businesses as a means of motivating demoralized religious conservatives to the polls in 2008. Such a strategy might make sense as a means of furthering the religious right's social agenda during a time the Republican party is likely not going to be able to pass any more morality legislation.
What about the laws passed by the last Congress?
In addition to a better congressional outlook for the industry over the next two years, there is some good news regarding enacted legislation under the last congress.
The new law criminalizing the creation of obscene material is certainly very scary. Violation of the law conceivably could send persons to jail merely for performing in, shooting, or even editing an adult video. If the violation of the law involves two or more creations of obscene material, the party also could face indictment for violation of the Racketeering Influenced and Corrupt Organizations Act, which could tack on 10 additional years of incarceration and result in substantial forfeiture of the party's assets, including homes and automobiles. Nevertheless, in their desire to legislate morality (i.e., provide strong incentives for people to keep sex private and not videotape their fornication), the religious conservatives who sponsored the bill drafted language that is so vague that it is unlikely that the law will withstand constitutional scrutiny.
The bad news about the recently enacted 2257 amendments might not be so bad after all. Congressional members of the religious right, in their zeal to legislate a socially conservative moral agenda before they were booted out of power, might have built a bridge too far—for a number of reasons.
Because one of the amendments imposes 2257 regulations on merely simulated sexual depictions (e.g., content frequently produced by mainstream motion picture companies, magazine and book publishers, and advertising agencies), the social conservative enemies of adult entertainment businesses have created a situation where non-adult industries with powerful political clout in Congress now have a common cause with the sex biz to invalidate the regulations.
Moreover, some amendments to the 2257 regulations passed last year actually have provided the Free Speech Coalition's challenge to the 2257 regulations with what many of the FSC's legal team believe is perhaps the best opportunity ever to strike down 2257 entirely (or at least to limit its most onerous sections severely). Of course, if the FSC succeeds in invalidating the law, the 2257 inspections would have to stop.
A year of greater recognition and acceptance
Amid all the bad news last year there were also a number of events that can be seen as signs the adult entertainment industry finally is being recognized, at least by some in government, as the huge, legitimate, wealth-generating, tax-paying business it is.
For example, last Oct. 12 at its headquarters in Washington, D.C., the Federal Bureau of Investigation hosted an unprecedented invitation-only meeting of a select group of leading adult entertainment companies and their attorneys in order to discuss candidly the 2257 compliance inspection process. The meeting was extraordinary because it was initiated by the government for the stated purpose of obtaining input from, and establishing a dialogue with, the adult entertainment industry regarding the 2257 compliance inspection process.
The FBI representatives in attendance believe the FBI cannot perform its 2257 inspection duties optimally without consultation and dialogue with the adult industry in the same manner that other federal regulatory agencies consult and confer with other large industries under their regulatory control.
Amid all the apparently negative news last year, the adult entertainment business advanced toward greater public acceptance. With greater acceptance of the business as a business comes a greater expectation that the business will act like a legitimate business. For example, don't be surprised if California's and perhaps other governmental entities adopt new regulations to protect the health and safety of adult-industry performers. If and when such regulations are adopted, their existence will demonstrate that society has accepted the fact that adult entertainment businesses can and should be treated as any other legitimate business.
While many view 2006 as a uniformly negative year for the adult entertainment industry, history may prove it really wasn't. In fact, with a little luck, someday we may view 2006 as a pivotal year for the industry. We hope also someday to look back on 2006 and remark that it was the year the morality police were stopped in their tracks and that great source of wisdom and strength, the American people, decided it was time for the political pendulum to start its swing back to where it is clear to all that the Constitution, and not some vague notion of traditional values, is in fact the supreme law of the land.
Gregory A. Piccionelli Esq., is an Internet and adult entertainment attorney. He can be reached at Piccionelli & Sarno, (310) 553-3375.
