Mixed Verdict on Porn

Federal court issues preliminary stay against some, not all Bush regulations

In a decidedly mixed New Year’s message for the pornography industry, U.S. District Judge Walker D. Miller of Colorado issued a preliminary injunction on December 28 against enforcement of certain portions of recently adopted Bush administration anti-porn regulations that could have caused widespread removal of sexually-oriented materials from the Internet.

At the same time, however, Miller cast serious doubt on First Amendment claims made by the Free Speech Coalition, a porn industry association, and refused preliminary relief against enforcement of other parts of the regulations.

Despite all the bluster by members of Congress and Bush administration officials about the necessity to crack down on the porn industry in order to prevent the sexual exploitation of children, there has never been significant enforcement activity under the particular statute at issue in this case, a record-keeping provision of the 1988 Child Protection and Obscenity Enforcement Act. It is intended to deter the production of child pornography by requiring the “producers” of sexually-explicit materials to maintain documentation files on all the performers with proof of age.

During the administration of President George H. W. Bush, the Justice Department adopted expansive regulations that redefined “producers” to include not only those described in the statute as persons or businesses who actually contracted with actors to appear in sexually-explicit materials, but also anybody who “reissued” or otherwise published or distributed online such materials. The expanded definition, under the designation “secondary producers,” threatened to impose the record-keeping requirements on just about anyone who published sexually-oriented material, regardless of whether they had actually produced it in the first place.

In 1998, the federal appeals court based in Denver, the 10th Circuit, ruled that this expanded regulation was an improper attempt to expand the reach of the statute through administrative action. As a consequence, no attempt has been made to enforce the record-keeping requirements against the so-called secondary producers. However, Congress subsequently amended the statute to toughen various compliance requirements, prompting the current Bush administration to issue new regulations last spring imposing much more wide-ranging compliance requirements, which led to the present lawsuit.

Despite the 1998 court ruling, the 2005 regulations retain the “secondary producer” provisions. The added regulations seen as most aggressive by the porn industry make the documentation requirements much stiffer. They mandate that every item of sexually-explicit material be labeled with a street address where the records are located and available for inspection by members of the public as well as federal compliance inspectors, that the real names of all actors be part of these records––thus defeating the attempt by many porn actors to protect their privacy by using pseudonyms—and that all producers, whether primary or secondary, maintain copies of all depictions available for inspection as well as lists of all URLs on the Internet where their productions could be found.

In addition—and a big issue for producers who use foreign performers who make porn while visiting in the U.S. on tourist visas, including many gay porn producers––there is a requirement that the personal identification be a copy of a U.S. or state government document. An appropriate document could be a passport, American driver’s license, or a Homeland Security Department “green card” authorizing a foreign citizen to work in the U.S. Such documents are unavailable for foreign nationals here as tourists. Consequently, the only depictions of such foreigners allowed are those in materials produced overseas, in which case of-of-country identification is acceptable for compliance records.

The Free Speech Coalition filed a lawsuit in the federal court in Denver seeking to halt enforcement of the new regulations, and requested a preliminary injunction to prevent enforcement while the lawsuit was in progress. The Justice Department quickly agreed not to attempt to enforce the regulations until Miller ruled on the request for a preliminary injunction, at least against the members of the Free Speech Coalition, which includes many porn industry producers large and small.

Miller’s ruling on December 28 deals a sharp blow to the Bush administration’s attempt to rid the Internet of porn, since it holds that the plaintiffs have shown a high likelihood of success on the merits of their claim that the attempt to impose the record-keeping requirements on secondary producers is an improper expansion of the statute. Miller found that he was bound by the prior 10th Circuit opinion to find the application of the regulations to “secondary producers” invalid, rejecting the government’s argument that since Congress had amended the statute after the 10th Circuit’s ruling––without addressing this issue––it had essentially rejected the 10th Circuit’s interpretation of the statute.

Miller also accepted the plaintiffs’ argument that the record-keeping requirements are unduly burdensome for operators of live chat-room Web sites, where performers may engage in sexual activity on a live Webcam while interacting with customers of the site. He also ruled that the requirement to keep exhaustive lists of all URLs is impossible to comply with and thus unenforceable.

On the other hand, Miller’s ruling poses a major setback to the industry in rejecting major First Amendment claims against the operation of the regulations on the primary––that is actual––producers of porn.

The judge dismissed as insubstantial the argument that compliance costs are so steep that many porn producers would basically be driven out of business, or that the privacy interests of porn performers must take priority over the government’s compelling interest in preventing the production and distribution of child pornography. Miller found that the regulations were content-neutral, a conclusion that strains logic, and refused to subject them to the strict scrutiny under which content-based regulation of speech is usually declared unconstitutional.

Refusing to enjoin the enforcement of the regulations against primary producers, Miller still left open the possibility that the industry might prevail after a full trial on the merits. The standard for issuing preliminary relief is a clear showing of likely success on the merits after trial as well as irreparable injury if enforcement of the regulations is not stayed for the duration of the litigation. The industry won preliminary relief on only a portion of their claims.

Miller’s ruling clearly signaled that it will be difficult for the industry to prevail on its argument that the exacting documentation and record-keeping requirements impose an unconstitutional burden.

An article from Adult Video News, an industry newsletter, posted on the Free Speech Coalition’s Web site after the opinion was announced proclaimed a partial victory for the industry, but observed, “On the whole, this is a good decision by Judge Miller, but it seems likely that both plaintiff and defense attorneys will find issues therein that they will want to appeal.”

Services

gaycitynews.com

More from Around NYC