Are We Losing the Fight for Porn?

It may not matter what the courts say about free speech or what the law is about adult content — because our Department of Justice has its own agenda.

The Sixth Circuit U.S. Court of Appeals recently ruled that the government's 2257 statute against pornography is unconstitutional, which immediately prompted an ecstatic round of premature celebrations. Salon's tech blogger Machinist popped a boner the size of the Empire State Building. ("Hallelujah!" he wrote. "Haul out your 8 MM, put on some lounge music, get your partner — and maybe a gaffer, some stage hands, a caterer, a boom operator and your parents, who'll be so proud —and get down! The 6th Circuit Court of Appeals has just ruled that you are free to make your own porn...")



Digital rights pundit Declan McCullough joined the frenzy, cheering that "this is likely going to be the last word unless the U.S. Supreme Court gets involved." But what looks like good news for porn looks like exactly the opposite — with a little history.

Explicit Justice

I wish I could be so blissfully ecstatic about the ruling, but this "unconstitutional" law enforcement has gone on for too long without any real consequences, despite previous major court rulings. In 1998, I was working my first adult content gig at a West L.A. company called Sundance and Associates, which among other things produced a series of print magazines which ran explicit classified ads, and was henceforth considered a "secondary producer" of adult content.

In 1998, Sundance sued Janet Reno, insisting that the first incarnation of the 2257 legislation failed to prove that by running these ads, Sundance was their "producer." The magazines were almost exactly the same as the Ohio magazines involved in last month's court decision, and our case ended up in the Tenth Circuit court, which ruled in our favor.

However, that ruling was never put to the test, because the Department of Justice never launched the inspections many producers feared they would. Instead, many content providers ranging from hardcore porn sites to internet dating services continued taking the greatest care in creating and keeping detailed records, fearing they'd otherwise face federal prosecution under a statute with "child pornography" in its title. Many even assumed the ruled-against legislation had remained intact and unchallenged!

In fact, U.S. Code 2257, which was passed under the guise of protecting children during the Clinton administration, instead puts anyone who's ever taken a sexually explicit photograph in jeopardy of federal prosecution. In 2005, Senators Hatch and Brownback overhauled the statute to address new technologies of production (like the interwebz), but with the troublesome "secondary producer" language remaining. The language in 2257 was ultimately slighted by the courts as being "poorly drafted...should never be used as a model of the English language" and "overbroad." (It's presently worded so that the naughty photo of you and your partner stored on your iPhone qualifies you as a producer of adult content.)


It's unknown how much producers struggled to adhere to this incarnation of the 2257 statute — but the wave of fear it produced is tangible. Attorneys for some websites, many unfamiliar with the code's storied history, have cowered under the threat of inspection, choosing instead to change their sites to avoid scrutiny.

Which is why the government will most likely stall any further judicial review as long as it can.

After all, it's already taken two more years just to get to this point, and if this administration knows the statute is eventually doomed, its best interests are served by postponing the inevitable. Until the highest court in the land puts the beat-down on this unconstitutional code, the chilling effect of possible prosecution will continue to be felt in what has always been the vanguard of the fight for free expression — the adult entertainment industry.

Even if you don't have an entire wing of your estate dedicated to the canon of Ron Jeremy, history has proven it unwise to encourage the persecution of one group, lest that group contain you later on. Especially with that iPhone photo we talked about earlier.

The Tragic Failure

Perhaps the most perverse element of 2257 is that, by using it as a blunt instrument to attack all adult content, it fails on its own premise of being a weapon against the creation and distribution of child pornography.

When the statute was first passed almost 20 years ago, both the porn industry and the Department of Justice were still smarting from the whole Traci Lords debacle, where it was revealed that the starlet had been working in the industry well before her 18th birthday. And while the millions in lost revenue from the loss of her catalog was fair evidence that the studios had been fooled by Lords' fake ID (and a talent well beyond her young years), the government nevertheless leapt at the chance to regulate an industry that they loathed.

So currently, every adult title must keep detailed records of everyone involved, just in case dark-suited FBI agents invade their offices. And that's every adult movie — even the ones that feature 70-year-old women and well-worn former fluffers engaged in geriatric carnal knowledge that nobody with half a brain would confuse with kiddie porn. As with the undocumented immigrant labor issue, many regard this extra record-keeping as an unreasonable burden. Opponents of the current 2257 statute maintain that the Constitution gives the government the burden of establishing whether or not adult content is child pornography — instead of placing a burden on the producers of proving content isn't child pornography.


In their new unanimous decision, the three judges of the Sixth Circuit also noted this peculiar irony: the tragic failure of 2257 to actually protect children by concentrating heavily on material so obviously outside this scope.

Leading the charge against the legislation was the Free Speech Coalition, a renowned trade organization and constitutional crusader — and they cited our 1998 victory against Janet Reno.

Reed Lee, the chair of their Legal Committee and an FSC board member, agreed with the Court that the legislation was too vague to actually afford any protection to children. "This is one of the arguments that we have been asserting all along and that we will continue to carry if necessary."

Of course, the court's decision is by no means the last word on 2257, and Lee believes the government will probably make its next move in the coming weeks. The Department of Justice could request that the Sixth Circuit court review its decision, or it could ask the United States Supreme Court to take up the case. It could also try to re-write the statute to address the court's concerns, though of the three justices on the Sixth Circuit, only one even believed that "portions of the section can be judicially salvaged."

Even if it's ultimately struck down by the Supreme Court as unconstitutional, Congress can always try to create a new statute without the same defects. (This isn't the first time the Department of Justice has been spanked for trying to bully the adult industry with anti-lifestyle legislation disguised as child protection.) But not everyone's as cynical about the outcome as I am.

In a press release, the currently-victorious FSC assessed the possibility that Congress could simply attempt a third iteration of the code. "Given the decision yesterday, that would not be easy to do and might not result in anything like the burdensome record-keeping requirements now on the books, but we must remain vigilant against efforts to revive Section 2257 legislatively.

If there's any hope today, it's the end result of a very long fight. "The Free Speech Coalition has worked hard over the past few years to be in a position to influence events in Congress as well as the courts. Our efforts there may not always be high-profile, but we are confident that we are in a position to be heard on policy issues as we never have before."

Eliminating the tools with which zealous, almost always Republican-controlled, U.S. Attorneys use the War on Porn to target whomever they don't want running around in society, is not just good for the adult industry — it protects all of us.

See Also:
Art or Bioterrorism: Who Cares?
Ed Rosenthal, Big Man of Buds
Sex Panic: An Interview with Debbie Nathan
Is It Fascism Yet?
Prior Permission From Government To Be Required For Each Flight