Sep 102010

by Brian Flaherty

The government has a legitimate interest in curbing traffic in child pornography – of this there is no question. However, as is too often the case, the laws enacted to fight a real problem are entirely ineffective against it, yet manage harm to a population entirely innocent of wrongdoing. In the case of child pornography, a law that looks good to a select group of morality-crusading zealots has had no demonstrable effect on traffic in child pornography, and yet has had real negative consequences for sex educators, consenting adults, and yes, the kinkily inclined.

In 1988, following the release of the now infamous Meese Commission Report on Pornography (pilloried nicely by Pat Califia here), congress enacted the Child Protection and Obscenity Enforcement Act, which included 18 U.S.C. 2257 and 2257A. This law requires producers of any visual material containing “actual sexually explicit conduct” (and now “lascivious exhibition of the genitals”) to comply with an elaborate record-keeping scheme – including photocopies of government issued IDs of all performers involved – in order to demonstrate that none of the participants in the material were minors. Furthermore, all visual materials have to include a label indicating where these records are kept (we’ve all seen these at the beginning of any commercial porn – something like “the records required by 18 USC 2257 are located…). Further, these records must be made available to the feds for inspection on demand! And in case you cannot see where this is going, yes this law does cover digital photography, taken at home, and posted to your favorite kinky social networking and.. er.. ‘dating’ site.

The arguments against this ludicrous law are legion: it is ineffective against traffic in child pornography, which is entirely underground (the Traci Lords argument notwithstanding); it (caution: legalese ahead) “impermissibly chills legitimate speech” of sex educators, kinky consenting adults, et al.; and it invades the privacy of non-minor participants in the creation of any sexually explicit media by making their IDs open to inspection. Alas, these arguments have been deftly ignored by courts since the enactment of the law. The most comprehensive opinion on the law to date has came out of the sixth circuit court of appeals, where Connection Distributing Co., publishers of a number of swingers magazines featuring personals ads with photographs, challenged the constitutionality of the law for the reasons I’ve outlined above. Long story short, after years of litigation at enormous cost to those involved, Connection lost, and the law was declared okey dokey.

Most recently the Eastern District of Pennsylvania declared the law constitutional once again. This decision was notable because not only was the law challenged by the adult film industry (represented by the Free Speech Coalition), but it was also challenged by a number of sex educators. The plaintiffs included some of my favorite people – Carol Queen, Betty Dodson, Nina Hartley – Adult Sex Educators whose work is directly impacted by the law. Once again, however, the court decided that the law was constitutional, and that any undue burden placed on sex educators, artists, aficionado’s of perverted social media and on the adult film industry at large was justified by this law’s awesome effectiveness at virtually eliminating child pornography (sarcasm added).

So the record-keeping law is still in place – and if the courts have their say, the law is sticking around. And just to be clear, the law explicitly applies to social media. In developing regulations to enforce the law, the Department of Justice wrote: “One who posts sexually explicit activity on “adult” networking sites may well be a…producer. Users of social networking sites may therefore be subject to the [law] depending on their conduct. (73 Federal Register at page 77438)”

But does this mean that the DOJ is going to come knocking on your door tomorrow to ask for IDs for the models in the photos you posted on FetLife? Not likely. The real problem with this law is that it places an undue burden on producers of sexually explicit media to prove that they’re not doing anything wrong. The penalties here – hefty fines and up to 5 years in prison – are not for producing child pornography, but for failing to keep elaborate records that prove that you didn’t produce child porn. Correct me if I’m wrong here, but if they do come knocking, shouldn’t the burden be on the Department of Justice to prove that you did do something wrong? If this law worked well to stem the unfortunate tide of child pornography, I would defend it. It doesn’t. Instead it requires artists, kinky people, and sex educators to keep records and post the whereabouts of those records on what they produce – which in the case of those who cannot afford a record-keeping warehouse, will be their home address. The law is overbroad and unjust – it is another in a pantheon of laws that can be enforced against sexual expression. These laws may not be regularly enforced against our community, but they define some sexual expression as culturally “out of bounds.” Not OK. As a poster or peruser of online amateur porn, this is your fight; as a producer or consumer of explicit sex education, this is your fight. Though you may be incredibly unlikely to find yourself at the wrong end of an 18 USC 2257 enforcement action, this is still your fight.

This presentation has attempted to put to together some legal information on alternative sexualities. Legal Information does not constitute legal advice. If you have specific questions please consult an attorney.