Rep. Mike Pence (R-Ind.), one of the most religio-conservative politicians in Congress today, has introduced House Resolution (H.R.) 3726, which would amend several federal laws, including the Recordkeeping and Labeling Act (18 U.S.C. §2257). The move marks the Religious Right's most blatant attempt yet to destroy the adult video industry, this time by granting the Justice Department increased powers to target adult producers within a state, without having to wait for them to ship their product across state lines.
H.R. 3726, which was first introduced on Monday, has been added as a rider to the Children's Safety Act of 2005, H.R. 3132, which was scheduled for a full Judiciary Committee hearing today. However, H.R. 3132 was apparently fast-tracked, since the bill, with CPPA 2005 added to it, was passed by the House today, and now goes to the Senate for consideration ... and likely passage.
Dubbed the "Child Pornography Prevention Act of 2005," H.R. 3726 is an obvious swipe at the Free Speech Coalition's win in FSC v. Ashcroft, where the U.S. Supreme Court struck down the sections of the Child Pornography Prevention Act of 1996 that criminalized as "child pornography" material which "appears to be" or "conveys the impression" of minors engaging in sexually explicit activity, even if all the participants are adults. Conservatives are still smarting from that 2002 loss, and the opinion by Justice Anthony Kennedy is often cited as an example of "judicial activism."
But more than a swipe, H.R. 3726 is an attempt to reverse that victory. The bill would amend 18 U.S.C. §2257(a)(1), (b) and (f)(4)(A) to delete the word "actual" as a modifier for "sexually explicit conduct," thereby opening the scope of the law to any production that depicts sexual acts in any way, either actual or simulated.
For example, 18 U.S.C. §2257(a)(1) would now read, in pertinent part, "Whoever produces any book, magazine, periodical, film, videotape, or other matter which-- (1) contains one or more visual depictions made after November 1, 1990 of sexually explicit conduct ... shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction."
The new bill similarly would eliminate the "actual" from the portions of the law requiring producers to keep records of performers of "sexually explicit conduct" and would criminalize retailers from selling, for instance, a copy of Blue Lagoon or The Last Picture Show if it lacked the "2257 notice" universally seen on hardcore adult videos.
"If I'm reading this correctly, this expands the scope of 2257 to make it apply to simulations," commented attorney J.D. Obenberger. "Now, there's no constitutional difference in protection between hardcore and softcore depictions, so I don't think that by expanding the scope of it, there's a strong constitutional argument that's raised by this. I think they have the power to do this, and what they're doing is they're just making it a nastier, uglier world and saying, if it's simulated stuff, you still have to comply with 2257."
"The change of 'actual sexually explicit conduct' to just 'sexually explicit conduct,' as well as the addition of nudity, vastly expands the scope of the materials covered by 2257," agreed attorney/AVN columnist Clyde DeWitt, "especially given all of the federal child pornography cases from around the country that have held that 'lascivious exhibition of the genitals or pubic area of any person' can include a fully clothed pubic area."
"The earlier distinction came because of the motion picture industry," added Obenberger, "so now, you're going to have to have 2257 notices in the end credits of movies where there's apparent or simulated sexual intercourse."
The change would also cut many Hollywood productions out of the tax benefits provided in the American Jobs Creation Act of 2004, which allows mainstream production companies to amortize the costs of movies more quickly – unless the feature has content requiring that 2257 records be kept, which includes all adult features, and under this bill, most R-rated and all NC-17-rated Hollywood productions.
But wait; it gets better. Sec. 3 of the new bill would make it a federal crime to refuse to allow "the Attorney General or his or her delegee to conduct an inspection under subsection (c)." Therefore, if an adult businessperson – let's say, a "secondary producer" – believes he/she has some legal right to keep the (so far undesignated) "2257 inspector" from examining his/her 2257 records, that mere refusal itself would be a crime, and the businessperson could find him/herself arrested on the spot and hauled off to jail.
Indeed, H.R. 3726 attempts to do away with the "secondary producer" controversy altogether, by amending 18 U.S.C. §2257 to remove the exemption for anyone whose business involves "mere distribution or any other activity which does not involve hiring, contracting for managing or otherwise arranging for the participation of the performers depicted." As amended, 2257(h)(3) would now read, "the term 'produces' means actually filming, videotaping, photographing; creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being; or 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, 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." [Change emphasized] Apparently, nobody does anything "mere" in the adult industry anymore!
"I think this is a direct response to the Free Speech Coalition lawsuit," Obenberger said. "I think the Justice Department was willing to let the Tenth Circuit [Sundance Associates v. Reno] opinion just float out there for years. It wasn't doing any harm, substantially, in the country. But we've now put it in their face and rubbed their face all around it in the courtroom and humiliated them in Denver, so they said, 'Well, fine; we'll fix their clock. We'll take away the most important tool in that litigation.'"
With this bill, also, the federal government's administrative subpoena powers – that is, its power to issue subpoenas to compel a person's appearance or to obtain records for a legal proceeding without demonstrating probable cause before a judge – have been "enhanced" to include not only a "Federal health care offense" and "a Federal offense involving the sexual exploitation or abuse of children" but also "a Federal offense involving the distribution of obscenity."
"There is not a great deal of difference between an administrative subpoena and a grand jury subpoena in practice," noted DeWitt, "but then those of us that were around for the flurry of prosecutions in the '80s can all remember what a terrible nuisance grand jury subpoenas can be, and surely administrative subpoenas give the Department of Justice one more missile to fire. The potential for abuse is overwhelming."
And to go along with the industry's new decreased Fourth Amendment protections, the bill also contains an onerous new criminal and civil forfeiture section.
"What one can easily miss in looking at this is the dramatic increase in the forfeiture provisions of 18 U.S.C. §1467," DeWitt noted. "After a hard fight in Congress in 1988, they added a requirement that the forfeiture of property used in an obscenity offense — unlike RICO, which automatically forfeits the whole enterprise — is limited to a forfeiture of that property only 'if the court in its discretion so determines, taking into consideration the nature, scope, and proportionality of the use of the property in the offense.' That caveat is removed under this bill, so it becomes a mandatory forfeiture of all instrumentalities of an obscenity offense even if just one item is found obscene: The building, bank accounts, the delivery truck and everything else. On top of that, the bill changes the law so that a 2257 conviction triggers mandatory forfeitures of everything involved in the offense. Somebody convicted of one indexing screw-up will have his whole company forfeited!"
Shades of U.S. v. Investment Enterprises, the Fifth Circuit case where the Justice Department tried to forfeit three entire adult companies based on four "obscene" tapes having been sent to Dallas, Texas!
"The reason why Justice wants this," DeWitt continued, "is that RICO, which does have mandatory forfeiture provisions, can be used only sparingly, and only with the approval of the top brass at the DOJ. And, to boot, they have incorporated the draconian drug-forfeiture provisions, which seem to include RICO-type mandatory forfeitures of the entire enterprise."
Considering the mindset of the current administration, prosecutors should have no trouble getting their superiors' approval for RICO obscenity forfeitures.
"I think the way this went down," Obenberger opined, "the Justice Department calls the House Judiciary Committee; Judiciary recommends this guy [Pence]; it gets introduced, and I think what's been going on is, the people involved in the litigation have been talking to the people at CEOS and they said, 'We'll fix them. We don't want them to have anything to stand on; we'll take it all away from them, and furthermore, we're going to rap their knuckles good and proper for trying.'"
But the real clincher is Sec. 7, "PROHIBITING THE PRODUCTION OF OBSCENITY AS WELL AS TRANSPORTATION, DISTRIBUTION, AND SALE." Forget the fact that there's no way to know whether a particular work is "obscene" before a jury reaches its verdict on the material; this section of the bill attempts to make the mere production of the material a crime above and beyond the interstate transportation of it.
See, used to be that the feds only had power over adult sexually explicit material if that material found its way into interstate commerce. If a producer of an adult movie sold that movie only in the state in which it was made, the feds wouldn't have been able to touch it.
In California, specifically, production of sexually explicit videos is protected by a 1987 state supreme court decision, People v. Freeman, and a 2005 New York lower court decision, People v. Paulino, which is currently unchallenged, protects adult video production in that state. However, in a typical pro-censorship sleight-of-hand, H.R. 3726 details extensive congressional "findings" that although the production of child pornography is almost always an intrastate activity, with the entire production process occurring entirely within one state, the increased accessibility of the Internet, coupled with individuals' easy, cheap access to high-tech video cameras and computer equipment, "taken together ... have had the unfortunate result of greatly increasing the interstate market in child pornography." [Emphasis added]
Anyone who's been following recent U.S. Supreme Court decisions is probably aware of two significant end-of-term rulings: Gonzales v. Raich and Kelo v. City of New London. In both instances, the high court found that although the issues were entirely intrastate – in Raich, the question of whether the U.S. Justice Department could bust "medical marijuana clubs", which legally supply marijuana to California residents who are prescribed the substance by their physicians, and in Kelo, whether a state could use its eminent domain power to take properties from unwilling owners and give it to local real estate developers – the fact that those actions could affect interstate commerce gave the federal court system the power, under the Constitution's commerce clause, to consider the issues.
The religio-conservative censorship machine long ago learned to use seemingly unrelated Supreme Court decisions against the adult industry, and here, Rep. Pence has attempted to use the intrastate/interstate convergence in Raich and Kelo to allow the federal government ostensibly to take actions targeting child porn production within a single state.
But the federal government already has the power to bust child porn producers wherever it finds them, and in fact, despite this bill's long preamble, it's clear that the objective of bringing in the intrastate/interstate controversy is not to target child porn production, but to set the stage for the feds to target intrastate adult porn production under the commerce clause.
Hence, H.R. 3726 would amend the title of 18 U.S.C. §1465 – the "Obscenity" crimes section – to read, now, "Production andtransportation of obscene matters for sale or distribution," and its operative text to read, "Whoever knowingly produces with the intent to transport, distribute, or transmit in interstate or foreign commerce, or whoever knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934) in or affecting such commerce, for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both." [Changes emphasized]
Sec. 1466, "Engaging in the business of selling or transferring obscene matter," is similarly amended to read, "Engaging in the business of producing with intent to distribute or sell, or selling or transferring obscene matter," and its text amended to add production as a crime.
Exactly what adding "production" to the crimes under §1465 and 1466 will allow the Justice Department to do to adult video producers is unclear, but it is likely that at the very least, it will permit the federal government to make production companies, performers, technicians and even video/DVD duplicators into defendants on federal obscenity indictments, where before, the feds might only have been able to indict a feature's distributors.
DeWitt, however, doesn't feel that the addition of "production" is as important as it might seem at first glance.
"The addition of 'production' to the two most significant federal obscenity offenses in reality doesn't change much," he said. "In the past, they have gone after producers on a conspiracy theory, but this lists production as a substantive offense; however, it requires the same interstate intent as conspiracy. Like the administrative subpoena, it likely would have little practical effect."
"The interesting thing about it is if, for example, they prosecuted someone in Los Angeles for producing with intent to put it into interstate commerce, they'd have to try that person based on Los Angeles community standards," he added. "Historically, they have had a propensity to want to use the community standards of places that are more conservative than the places where the movies are usually produced. But this change may be completely unnecessary. After all, they prosecuted Harry Reems on a conspiracy theory in Memphis, Tennessee in the '70s for simply appearing in Deep Throat, and they certainly wouldn't have wanted to bring that case in Los Angeles, whose community standards presumably were more enlightened than those of Memphis."
"This is just another unconstitutional attempt to regulate the adult industry when they don't need that regulation, " summarized attorney Paul Cambria. "It seems to me that these right-wing politicians do this so that they can appease their constituency of right-wingers. I think they do this as window-dressing for their right-wingers; 'Look what I've done for you in sponsoring this legislation.'"
"This will be an absolute disaster for a variety of reasons," DeWitt said grimly.
