Gail Dines Tackles FSC's 2257 Victory—And Gets Most Of It Wrong

CYBERSPACE—Now that Free Speech Coalition has its victory over the federal record-keeping and labeling law under its belt (pending appeal, of course), we knew it was probably time for the anti-porn bottom-feeders to weigh in on it—and first to raise her head from the trough is Gail Dines, professor of women's studies at Wheelock College, along with her co-author UMass's David L. Levy, though the invective seems to be pure Dines throughout. And of course, the pair get just about every important point wrong about not only the decision itself, but its likely effects on society. Take the article's opening sentence: "A federal appeals court judge just made it a lot easier for the pornography industry to abuse and exploit children for profit." That thought was amplified in the second paragraph, where the authors claim, "We believe it could lead to a sharp increase in the number of underage performers being exploited due to the removal of legal oversight and penalties for uploading or distributing images that feature minors." Can you spot the error? How about the fact that the "pornography industry" goes out of its way to make sure kids don't appear in its productions, if for no other reason (and believe us, there are other reasons) than that if adult producers used kids, they'd fall afoul of the federal child pornography laws and wind up behind bars for upwards of five years. And of course, the "legal oversight and penalties for uploading or distributing images that feature minors" are still well in force under the federal criminal code, although the FBI will now need an actual warrant to search adult businesses when looking for the (non-existent) kiddie porn. Dines and her colleague claim to have been "studying the business of porn for years," which in Dines' case included claiming that she attended AVN's Adult Entertainment Expo once and saw hardcore porn being projected on the walls of the exhibit hall—and then there's the debate she lost at The Cambridge Union in 2011 against adult producer Anna Span. Here she claims to have "provided expert testimony in 2013 in a related court case and endured two hours of grilling from the judge and porn industry lawyers." The "related court case" was in fact the very 2257 case she's discussing here, and those who'd like to refresh themselves on what she testified can find it recounted here. (For those who'd just like a quick taste, she testified, under oath, that "pornography has become 'much more cruel,' and that 90 percent of the sex scenes in the top-selling DVDs feature violence and non-consensual acts.") Dines/Levy are mostly correct that "Judge Michael Baylson of the U.S. 3rd Circuit of Appeals ruled that most of 2257’s record keeping requirements were unconstitutional on First and Fourth Amendment grounds"—the Fourth Amendment part only relates to the warrantless searches, not the record-keeping itself—but the reason he found so is that he was required by his superiors, the Third Circuit Court of Appeals, to consider the law under "strict scrutiny," which holds that in order for a law targeting speech to survive, it must serve a "compelling governmental interest," be "narrowly tailored" and be the "least restrictive means" to achieve that interest. 2257 is none of these, so it had to go. But for Dines/Levy, that's only part of the problem: "In the most far-reaching and troublesome change, the decision completely exempts major distributors (termed secondary producers), from any record-keeping requirements." That's right: According to them, it's important that the people who have nothing to do with the production of the material or have any contact with the performers nonetheless keep ID records... Why? "The requirement provides the only way to verify and track performers’ ages and serves as a major incentive for businesses across the complex supply chain to monitor content." Um, no. If the feds want to find out who produced a DVD, guess what? The company's name is right there on the packaging, and the retailer/distributor can easily provide contact info for it pronto! Dines/Levy then recount the "30-year war" on the adult industry in the name of fighting kiddie porn, and they get some of that wrong as well, most noticeably the idea that the Meese Commission grew out of Traci Lords' appearance in Penthouse magazine rather than her prolific XXX movie career before she outed herself as being underage, forcing a recall of millions of dollars' worth of product. (Since then, of the tens of thousands of movies released by the adult industry, only five or six underage performers have managed to sneak in—and all of those were caught by the producers themselves!) Dines also claims that Free Speech Coalition "filed many lawsuits over the years challenging 2257, claiming that the regulations placed an undue burden on pornographers’ free speech and violated Fourth Amendment protections against warrantless search and seizure." We weren't aware that "many" now means "two," including the current case. The further one gets into Dines/Levy's article, the more the errors abound. How about their claim that, "In the 2013 case in which we served as expert witnesses, the Free Speech Coalition challenged 2257 by claiming that there was hardly any porn featuring young-looking females." Um, no: FSC argued that there were no underage performers appearing in the industry's movies, and that keeping all the records that 2257 requires in the exact order they're required to be kept is burdensome, both in terms of manpower and money—and Dines/Levy even admit that, at least regarding web content, later in the article: "Although software solutions are available that could tag every picture and video with data on the performers, the complexity of distribution networks and the vast amount of product uploaded by third parties likely makes compliance with 2257 somewhat cumbersome and costly." But Dines/Levy save their real ire for "the largest multinational porn conglomerate in the world," MindGeek, which they claim "source[s] porn content from a large number of fragmented low-cost producers, who are increasingly located around the globe. The growth of the market segment featuring young-looking females represented a potential legal threat. And distributors of porn—like other internet companies and social media platforms—want to avoid responsibility for content that could expose them to substantial legal and financial liabilities." That embedded link goes to an article about challenges to the Digital Millennium Copyright Act's (DMCA) Section 230 "safe harbor" for ISPs that allow users to post content on their systems without oversight from the ISP itself. But it's not the adult industry that got Section 230 put into the DMCA; it was the (mainstream) ISPs themselves—and of course, adult industry members are great believers in people paying for their porn, and oppose fans stealing their content and making it available on sites that allow user postings. With no fan uploads, the possibility of an underage performer being seen in explicit content vanishes, since the ISPs know better than to post such content themselves. Dines/Levy's bottom line? "Compliance with age verification laws might cost the industry some money, but we believe this is a small price to pay to protect children from the predatory porn industry." In fact, the "predatory porn industry," a misnomer if there ever was one, doesn't seek out kids to appear in its movies; in fact, it does everything it can to avoid using them—by attempting to verify the performers' ages in the exact way 2257 wants: by checking a government-issued ID. Instead, the government came up with a useless and expensive regimen to keep those IDs on file—but as AVN pointed out even before FSC's current lawsuit was filed, 2257 would have been toothless in dealing with producers who did use underage performers as long as the producer kept the required IDs in the required folders. It also pointed out that, guess what, child porn producers don't keep 2257 ID records at all! So what can we say? Keep trying, Gail; there's still "good" money to be made in them thar anti-porn hills! Photo of Gail Dines at Cambridge union debate by Marty555 c/o Wikimedia Commons