Legalese Column: Fire Up Your 2257 Engines

This article originally ran in the February 2016 issue of AVN magazine. Click here to see the digital edition. Jeff Sessions is now the United States attorney general. Whatever else this might mean, you should count on 2257 rearing its ugly head and prepare accordingly. Circle the wagons and keep your powder dry! Here’s why: Q: Is 2257 unconstitutional? A: Yes, says the Third Circuit. Free Speech Coalition, Inc. v. Attorney General United States, 825 F.3d 149 (3 RD Cir. 2016). But Republicans have amended 2257 when it was held unconstitutional after being enacted the first time. And they repeatedly have changed the regulations to accommodate potentially successful challenges. Q: But doesn’t Congress have other fish to fry, like repealing Obamacare? A: Sure. But don’t forget history. Ever since Ronald Reagan figured out in 1984 that the way to Republican election victories was to sell out to the Evangelicals (née the Religious Right), porn has been in Republican cross-hairs. Republicans control both houses of Congress and the White House, with super-evangelical Mike Pence presiding over the Senate. Q: I’ll be okay if I fix it now, right? A: Well, the statute of limitations for a violation of 2257 is five years. (18 U.S.C. §3282) Although you certainly need to look to the present and the future, make sure past sins are covered. Q: How can they possibly police the adult video industry given the enormous number of producers? A: That isn’t their point. The point is that the Republicans are trying to appease the Evangelicals. And it is broadly popular to say, “We are out to prevent child pornography.” That, of course is absurd. The penalties for producing or distributing child pornography are so severe that nobody in the mainstream adult industry would risk it. Indeed, there has been a sea change in the adult industry since 2257 was conceived by the 1996 Final Report of the Attorney General’s Commission on Pornography. Back then, there were maybe two dozen companies in Los Angeles’ San Fernando Valley (with a few in San Francisco and in New York). Production equipment was expensive, which was a barrier to entry into the market. And distribution was by VHS only. (Remember that?) Today, you can shoot motion pictures with your phone! So, a reminder of the basic 2257 rules is warranted. However, don’t fill your own teeth! This is not a substitute for a lawyer; this is to alert you to the fact that you need to consult one. When is 2257 an issue? Here are those rules: What Behavior Triggers 2257? It depends on the production date. In any event, the inquiry is not what behavior is revealed in the picture; it is what is occurring in the picture. Camera angles, cropping or pixilation of sexual activity will not change the applicability of 2257. These are the relevant periods of time: Prior to July 3, 1995: 2257 never applies Between July 3, 1995 and March 18, 2009: Any sexual contact—anyone touching anyone’s genitals, including their own, with anything—or any sadomasochistic behavior. (The statute says, “(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation [or]; (iv) sadistic or masochistic abuse.”) After March 18, 2009: Everything in Number 2, plus “lascivious exhibition of the genitals or pubic area of any person.” In the context of erotic media, this includes any image including the pubic area below the waist, even if covered with clothing, unless it is loose fitting. Caveat: If those are the only categories of your images, there is a shortcut to keeping records. What Form of Identification? It must include the subject’s photo, birth date and legal name; and it must be issued by the United States or a state government within the United States. An exception is if the filming is accomplished outside the United States or any of its possessions, then a comparable identification document issued by any national government or province thereof is acceptable. What Information about the Performer must be in the Records? For each performer, the required information is (1) the performer’s legal name, date of birth, which must be taken from the identification document; (2) a copy of that identification document; and (3) any other name ever used by the performer, but you can take the performer’s word for it unless you know otherwise. Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at clydedewitt@earthlink.net. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.