The Child Pornography Prevention Act of 2005 was initially introduced by Congressman Michael Pence (R-Indiana) on Monday as a stand-alone bill, H.R. 3726, to the 109th Congress. However, it was added on Wednesday, by voice vote, four minutes after it was introduced as an amendment to the Children’s Safety Act, H.R. 3132, a bill nominally designed primarily “to make improvements to the national sex offender registration program.” H.R. 3132 passed the House less than two hours later by a 371–52 roll-call vote. (Congress made 750 words of detailed findings in two hours?) Senate sponsors have announced their intention to pass H.R. 3132 by the close of 2005. It includes some dramatic changes in the law, and some not so dramatic ones.
Among the most dramatic is to legislatively overrule Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the case holding that the Attorney General had no authority to impose record-keeping requirements on so-called “secondary producers.” That obviously will have the most stunning consequences for operators of adult Web sites. Those who purchase content from dozens – perhaps hundreds – of sources would be faced with daunting requirements to keep and index records.
To the adult industry, perhaps the other most dramatic change proposed by this bill is adding §2257 to the list of “child pornography” offenses that trigger the mandatory forfeiture of any real or personal property “used or intended to be used to commit or to promote the commission of” the offense (18 U.S.C. §2253). An entire company could be forfeited as a consequence of one omitted maiden name; an entire Internet business could be forfeited if the link to the §2257 records said “18 U.S.C. §2257 records”, rather than “18 U.S.C. §2257 Record-Keeping Requirements Compliance Statement,” as specifically required by the regulations.
On the topic of forfeiture, many reading this are too young to remember the Congressional battle in 1988 over the enactment of 18 U.S.C. §1467, which allows forfeiture of real or personal property used in an obscenity offense. As proposed, the law would have included mandatory forfeiture of all such property. The significance of that was that, although an obscenity-RICO charge could generate the same result, RICO is used very sparingly by the Department of Justice, as evidenced by the fact that there have only been a handful of RICO-obscenity cases since obscenity was added in 1984 to the list of RICO predicate crimes – and every one of those also involved an income-tax evasion charge. (Ironically, in the first RICO-obscenity case, Dennis and Barbara Pryba were acquitted of all tax violations!)
Additionally, any RICO prosecution must be approved by the top brass at the Department of Justice. Thus, obscenity prosecutors would have added something significant with §1467 as a mandatory-forfeiture weapon. However, in response to all of the objections, the final version of §1467 limited forfeitures to involved property “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.” The bill now before the Senate changes that, taking away the court’s discretion.
Also of great significance – particularly to the motion picture and even cable television industries – is the expansion of the depictions covered by §2257. The bill expands coverage to simulated depictions, and adds to the list of types of conduct “lascivious exhibition of the genitals or pubic area.” To the adult industry, this will have a significant impact on advertising, especially because federal courts, in child-pornography prosecutions where the same definition applies, have consistently held that a depiction of a fully clothed individual nonetheless can qualify as a “lascivious exhibition of the genitals or pubic area.”
Of perhaps less significance are the two sections of the bill allowing administrative subpoenas for obscenity cases and creating the substantive offense of production of obscene material with intent to send in interstate commerce. As to the former, federal prosecutors already have draconian power by the use of grand jury subpoenas, and the administrative-subpoena power has long existed for the Federal Trade Commission, the Internal Revenue Service, the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the Department of Labor and others. Administrative subpoenas can be challenged in court, just like grand jury subpoenas.
The addition of a production of obscene material offense does little to augment existing conspiracy laws, since it is extraordinarily difficult to produce obscene material without two or more people agreeing to do so. Moreover, if there were never any interstate distribution – only production with intent to do so – the prosecution would have to take place where the production was, and most adult movie making happens in venues of which obscenity prosecutors are not particularly fond, like Los Angeles, San Francisco or New York City.
Finally, the bill adds as a line-item criminal offense the act of refusing “to permit the Attorney General or his or her delegee to conduct an inspection.” That probably was a bit of an oversight when §2257 was first enacted, but refusing an inspection probably would have been viewed as obstruction of justice, a long-standing and often-used federal crime.
All in all, this bill is terribly dangerous, although expect considerable opposition. But don’t expect a veto!
(DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since the early 1980s. He can be reached through AVN’s offices, or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
