Child Protection and Obscenity Enforcement Act
Encyclopedia
The Child Protection and Obscenity Enforcement Act of 1988, title VII, subtitle N of the Anti-Drug Abuse Act of 1988
, , , is part of a United States
Act of Congress
which places stringent record-keeping requirements on the producers of actual, sexually explicit materials. The guidelines for enforcing these laws (colloquially known as 2257 Regulations (C.F.R. Part 75), part of the United States Code of Federal Regulations
, require producers of sexually explicit material to obtain proof of age for every model they shoot, and retain those records. Federal inspectors may at any time launch inspections of these records and prosecute any infraction.
While the statute seemingly excluded from these record-keeping requirements anyone who is involved in activity that "does not involve hiring, contracting for, managing, or otherwise arranging for, the participation of the performers depicted," the Department of Justice
(DOJ) defined an entirely new class of producers known as "secondary producers." According to the DOJ, a secondary producer is anyone who "publishes, reproduces, or reissues" explicit material.
On October 23, 2007, the 6th Circuit U.S. Court of Appeals
ruled that the record keeping requirements were facially
invalid because they imposed an overbroad burden on legitimate, constitutionally protected speech. However the US DoJ, under control by US Attorney General Michael B. Mukasey
, has asked for, and was granted, an en banc
review of the initial decision of the 6th Circuit Court in order to see if the initial decision should be overturned. The Sixth Circuit subsequently reheard the case en banc
and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents.
The United States Supreme Court refused to hear (denied certiorari
to) the April 2009 challenge to Connection Distributing Co. et al. v. Holder, the Sixth Circuit Court of Appeals decision on the legality of 2257 and its enforcement. (See "Order List", Monday, October 5, 2009).
that has been created by virtue of the Act to guide and aid its enforcement, 28 C.F.R. 75 (also known as the 2257 Regulations), specifies record-keeping
requirements for those wishing to produce sexually explicit media, and imposes criminal penalties for failure to comply. This is intended to ensure that no person under the legal age
is involved in such undertakings.
The regulations define the terms "primary producer" and "secondary producer". A primary producer is defined in the set of rules as any person who actually films, videotapes, or photographs a visual depiction of actual sexually explicit conduct. A "secondary producer" is defined as any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or other matter intended for commercial distribution that contains a visual depiction of actual sexually explicit conduct. Different record-keeping requirements exist for primary versus secondary producers. One may be both a primary and a secondary producer.
The regulations also spell out requirements for the maintenance, categorization, location, and inspection of records, as well as legal grounds for exemption of these requirements. They require that records be maintained for five years after the dissolution of a business that had been required to maintain them.
The Department of Justice can modify the regulations, based on the discretion, or possible future requirements, that has been given to it to do so by the Act.
At present, the Department of Justice has only implemented one specific case based primarily on the new 2257 laws and its supportive regulations. The case was against Mantra Films, Inc.
, based in Santa Monica, California
, and its sister company MRA Holdings (both owned by Joe Francis
), who are the originators of the Girls Gone Wild
video series. Francis and several of his managers were prosecuted, citing infractions of this act.
In January 2007, these charges were for the most part dropped.
However, Francis and the company entered guilty pleas on three counts of failing to keep the required records and seven labeling violations for its series of DVDs and videos before U.S. District Judge Richard Smoak, agreeing to pay $2.1 million in fines and restitution. This allowed Francis to avoid possible harsher penalties which include five years prison time for each violation.
Also in 2006, the FBI, under the direction of United States attorney general John Ashcroft
, began checking the 2257 records of several pornography production companies.
The final regulations implementing Congressional amendments to 2257, termed 2257A, were updated December 18, 2008 and went into effect on the same day as the inauguration of Barack Obama
. On that same day, January 20, 2009, President Obama, through Chief of Staff Rahm Emanuel
, requested by memorandum that heads of departments allow for review by the incoming administration of all regulations not then final.
After Thornburgh, Congress amended 2257 to impose direct criminal penalties for noncompliance with the record-keeping requirements. The same plaintiffs challenged the amended statute and accommanying regulations, but the new version was upheld by American Library Ass'n v. Reno, 33 F.3d 78 (D.C. Cir. 1994).
In Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." 18 U.S.C. § 2257(h)(3).
In 2004, bound by the new PROTECT Act of 2003
, the DOJ made sweeping changes to the 2257 Regulations to keep up with the proliferation of sexually explicit material found on the Internet. However, the "secondary producer" language not only remained in the regulations, but the DOJ created a much wider interpretation of who exactly was a "producer" of sexually explicit material and hence was required to comply with the new regulations. Anyone who touched explicit content in any way could arguably be considered a producer and be forced to maintain identification records of models along with a highly complex indexing system that many argue is impossible to implement. Under the current law, anyone who commercially operates a website or releases sexually explicit images of actual humans, regardless of the format (DVD, photos, books, etc.), is subject to penalties that include up to five years in federal prison
per each infraction of the regulations. These regulations do not currently apply to explicit drawings (i.e., adult cartoons, hentai
) as no actual humans are involved in such production. However, the exclusion for such sexually explicit drawings are being confronted with changes to these laws in the recently signed Adam Walsh Child Protection and Safety Act
addendum to the adult record-keeping requirements now codified at 18 U.S.C. § 2257A. At this time, though signed into law, the portions of § 2257A which include simulated sex are not enforceable.
In June 2005, the Free Speech Coalition
sued the Department of Justice to enjoin the regulations until they can be challenged in whole in court. In December 2006, a federal judge issued an injunction protecting secondary producers who are members of the Free Speech Coalition, but FBI inspections of these producers are still ongoing despite the injunction.
On March 30, 2007, District Court
Judge Walker Miller issued an interim ruling, which dismissed some causes of action and allowed others from the initial 2005 case to proceed in light of the Walsh Act amendments. The actual trial phase has not yet begun.
On October 23, 2007, the 6th Circuit U.S. Court of Appeals
ruled the federal record-keeping statute unconstitutional, holding that the law is overbroad and facially invalid. The Sixth Circuit subsequently reheard the case en banc
and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents.
These new regulations were allowed in actual legal enforcemet by the dismissal of its constitutionality challenges by U.S. District Judge Michael Baylson on July 28, 2010, as the US Supreme Court had already refused to hear the same challenge in 2009.
ON Monday, September 20, 2010, Judge Baylson rejected FSC's amended appeal, allowing the government record-keeping inspections to be restarted.http://business.avn.com/articles/Analysis-2257-Judge-Rejects-FSC-s-Motion-For-Reconsideration-412508.html
The FSC stated that they would appeal the case to the Third Circuit of Appeals if needed.
Anti-Drug Abuse Act of 1988
The Anti-Drug Abuse Act of 1988, , , established the creation of a drug-free America as a policy goal and established the Office of National Drug Control Policy. The media campaign mentioned in the act later became the National Youth Anti-Drug Media Campaign....
, , , is part of a United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Act of Congress
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....
which places stringent record-keeping requirements on the producers of actual, sexually explicit materials. The guidelines for enforcing these laws (colloquially known as 2257 Regulations (C.F.R. Part 75), part of the United States Code of Federal Regulations
Code of Federal Regulations
The Code of Federal Regulations is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.The CFR is published by the Office of the Federal Register, an agency...
, require producers of sexually explicit material to obtain proof of age for every model they shoot, and retain those records. Federal inspectors may at any time launch inspections of these records and prosecute any infraction.
While the statute seemingly excluded from these record-keeping requirements anyone who is involved in activity that "does not involve hiring, contracting for, managing, or otherwise arranging for, the participation of the performers depicted," the Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
(DOJ) defined an entirely new class of producers known as "secondary producers." According to the DOJ, a secondary producer is anyone who "publishes, reproduces, or reissues" explicit material.
On October 23, 2007, the 6th Circuit U.S. Court of Appeals
United States Court of Appeals for the Sixth Circuit
The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...
ruled that the record keeping requirements were facially
Facial challenge
In the context of American jurisprudence, a facial challenge is a challenge to a statute in court, in which the plaintiff alleges that the legislation is always, and under all circumstances, unconstitutional, and therefore void...
invalid because they imposed an overbroad burden on legitimate, constitutionally protected speech. However the US DoJ, under control by US Attorney General Michael B. Mukasey
Michael B. Mukasey
Michael Bernard Mukasey is a lawyer and former judge who served as the 81st Attorney General of the United States. Mukasey, an American lawyer, was appointed following the resignation of Alberto Gonzales. Mukasey also served for 18 years as a judge of the United States District Court for the...
, has asked for, and was granted, an en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
review of the initial decision of the 6th Circuit Court in order to see if the initial decision should be overturned. The Sixth Circuit subsequently reheard the case en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents.
The United States Supreme Court refused to hear (denied certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to) the April 2009 challenge to Connection Distributing Co. et al. v. Holder, the Sixth Circuit Court of Appeals decision on the legality of 2257 and its enforcement. (See "Order List", Monday, October 5, 2009).
Allied administrative law (2257 Regulations)
The administrative lawAdministrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
that has been created by virtue of the Act to guide and aid its enforcement, 28 C.F.R. 75 (also known as the 2257 Regulations), specifies record-keeping
Business record
A business record is a document that records a business dealing. Business records include meeting minutes, memoranda, employment contracts, and accounting source documents....
requirements for those wishing to produce sexually explicit media, and imposes criminal penalties for failure to comply. This is intended to ensure that no person under the legal age
Age of consent
While the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
is involved in such undertakings.
The regulations define the terms "primary producer" and "secondary producer". A primary producer is defined in the set of rules as any person who actually films, videotapes, or photographs a visual depiction of actual sexually explicit conduct. A "secondary producer" is defined as any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or other matter intended for commercial distribution that contains a visual depiction of actual sexually explicit conduct. Different record-keeping requirements exist for primary versus secondary producers. One may be both a primary and a secondary producer.
The regulations also spell out requirements for the maintenance, categorization, location, and inspection of records, as well as legal grounds for exemption of these requirements. They require that records be maintained for five years after the dissolution of a business that had been required to maintain them.
The Department of Justice can modify the regulations, based on the discretion, or possible future requirements, that has been given to it to do so by the Act.
Enforcement
It is clear there is much sexual material on the Internet and elsewhere that would fall within the terms of this law. These laws and supportive regulations only affect producers of sexually explicit content who reside and produce material within the United States or resell their products within the United States.At present, the Department of Justice has only implemented one specific case based primarily on the new 2257 laws and its supportive regulations. The case was against Mantra Films, Inc.
Mantra Films, Inc.
Mantra Films Inc., or Mantra Entertainment, is a softcore pornography production company created by Joe Francis, chiefly for the production and distribution of the vast United States-based Girls Gone Wild and Guys Gone Wild enterprises that he leads...
, based in Santa Monica, California
Santa Monica, California
Santa Monica is a beachfront city in western Los Angeles County, California, US. Situated on Santa Monica Bay, it is surrounded on three sides by the city of Los Angeles — Pacific Palisades on the northwest, Brentwood on the north, West Los Angeles on the northeast, Mar Vista on the east, and...
, and its sister company MRA Holdings (both owned by Joe Francis
Joe Francis
Joseph R. "Joe" Francis is an American entrepreneur, known as the founder of GGW Brands which produces the Girls Gone Wild and Guys Gone Wild DVD series....
), who are the originators of the Girls Gone Wild
Girls Gone Wild
The Girls Gone Wild franchise, created by Joe Francis, is a video series by the production company Mantra Films, Inc., which is headquartered in Santa Monica, California.-Content:...
video series. Francis and several of his managers were prosecuted, citing infractions of this act.
In January 2007, these charges were for the most part dropped.
However, Francis and the company entered guilty pleas on three counts of failing to keep the required records and seven labeling violations for its series of DVDs and videos before U.S. District Judge Richard Smoak, agreeing to pay $2.1 million in fines and restitution. This allowed Francis to avoid possible harsher penalties which include five years prison time for each violation.
Also in 2006, the FBI, under the direction of United States attorney general John Ashcroft
John Ashcroft
John David Ashcroft is a United States politician who served as the 79th United States Attorney General, from 2001 until 2005, appointed by President George W. Bush. Ashcroft previously served as the 50th Governor of Missouri and a U.S...
, began checking the 2257 records of several pornography production companies.
The final regulations implementing Congressional amendments to 2257, termed 2257A, were updated December 18, 2008 and went into effect on the same day as the inauguration of Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
. On that same day, January 20, 2009, President Obama, through Chief of Staff Rahm Emanuel
Rahm Emanuel
Rahm Israel Emanuel is an American politician and the 55th and current Mayor of Chicago. He was formerly White House Chief of Staff to President Barack Obama...
, requested by memorandum that heads of departments allow for review by the incoming administration of all regulations not then final.
Legal challenges
The initial iteration of 2257, first passed in 1988, mandated that producers keep records of the age and identity of performers and affix statements as to the location of the records to depictions. However, rather than penalties for noncompliance, the statute created a rebuttable presumption that the performer was a minor. Pub. L. 100-690. This version was struck down as unconstitutional in American Library Association v. Thornburgh on First Amendment grounds. 713 F. Supp. 469 (D.D.C. 1989) vacated as moot 956 F.2d 1178 (D.C. Cir. 1992).After Thornburgh, Congress amended 2257 to impose direct criminal penalties for noncompliance with the record-keeping requirements. The same plaintiffs challenged the amended statute and accommanying regulations, but the new version was upheld by American Library Ass'n v. Reno, 33 F.3d 78 (D.C. Cir. 1994).
In Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." 18 U.S.C. § 2257(h)(3).
In 2004, bound by the new PROTECT Act of 2003
PROTECT Act of 2003
The PROTECT Act of 2003 is a United States law with the stated intent of preventing child abuse. "PROTECT" is a "backronym" which stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today"....
, the DOJ made sweeping changes to the 2257 Regulations to keep up with the proliferation of sexually explicit material found on the Internet. However, the "secondary producer" language not only remained in the regulations, but the DOJ created a much wider interpretation of who exactly was a "producer" of sexually explicit material and hence was required to comply with the new regulations. Anyone who touched explicit content in any way could arguably be considered a producer and be forced to maintain identification records of models along with a highly complex indexing system that many argue is impossible to implement. Under the current law, anyone who commercially operates a website or releases sexually explicit images of actual humans, regardless of the format (DVD, photos, books, etc.), is subject to penalties that include up to five years in federal prison
Federal prison
Federal prisons are run by national governments in countries where subdivisions of the country also operate prisons.In the United States federal prisons are operated by the Federal Bureau of Prisons. In Canada the Correctional Service of Canada operates federal prisons. Prison sentences in these...
per each infraction of the regulations. These regulations do not currently apply to explicit drawings (i.e., adult cartoons, hentai
Hentai
is a Japanese word that, in the West, is used when referring to sexually explicit or pornographic comics and animation, particularly those of Japanese origin such as anime, manga, and computer games. The word hentai is a kanji compound of 変 and 態...
) as no actual humans are involved in such production. However, the exclusion for such sexually explicit drawings are being confronted with changes to these laws in the recently signed Adam Walsh Child Protection and Safety Act
Adam Walsh Child Protection and Safety Act
The Adam Walsh Child Protection and Safety Act is a federal statute that was signed into law by U.S. President George W. Bush on July 27, 2006. The Walsh Act organizes sex offenders into three tiers and mandates that Tier 3 offenders update their whereabouts every three months with lifetime...
addendum to the adult record-keeping requirements now codified at 18 U.S.C. § 2257A. At this time, though signed into law, the portions of § 2257A which include simulated sex are not enforceable.
In June 2005, the Free Speech Coalition
Free Speech Coalition
The Free Speech Coalition is a non-profit trade association of the pornography and adult entertainment industry in the United States...
sued the Department of Justice to enjoin the regulations until they can be challenged in whole in court. In December 2006, a federal judge issued an injunction protecting secondary producers who are members of the Free Speech Coalition, but FBI inspections of these producers are still ongoing despite the injunction.
On March 30, 2007, District Court
United States District Court for the District of Colorado
The United States District Court for the District of Colorado is the Federal district court whose jurisdiction is the state of Colorado. The United States Congress organized Colorado as a single judicial district on June 26, 1876, by 19 Stat. 61...
Judge Walker Miller issued an interim ruling, which dismissed some causes of action and allowed others from the initial 2005 case to proceed in light of the Walsh Act amendments. The actual trial phase has not yet begun.
On October 23, 2007, the 6th Circuit U.S. Court of Appeals
United States Court of Appeals for the Sixth Circuit
The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...
ruled the federal record-keeping statute unconstitutional, holding that the law is overbroad and facially invalid. The Sixth Circuit subsequently reheard the case en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents.
Proposed regulations
On July 12, 2007, the Department of Justice issued a preliminary set of addendum record keeping regulations based on the Walsh Act amendments onto the existing regulations at 25 C.F.R. pt. 75. These new regulations are meant to encompass the inclusion of simulated sexual actions that do not actually show explicit sexual contact or fulfillment that were included by the Adam Walsh Act that was signed into law in 2007.These new regulations were allowed in actual legal enforcemet by the dismissal of its constitutionality challenges by U.S. District Judge Michael Baylson on July 28, 2010, as the US Supreme Court had already refused to hear the same challenge in 2009.
Court affirmation of 2257 and 2257A
After the July 2010 decision by U.S. District Judge Michael Baylson to dismiss the FSC’s lawsuit per the request of US Attorney Eric Holder's DoJ, agreeing that USC 2257 and 2257A regulations are constitutional, the FSC then filed an additional appeal to amend their original challenge to the constitutionality challenge.ON Monday, September 20, 2010, Judge Baylson rejected FSC's amended appeal, allowing the government record-keeping inspections to be restarted.http://business.avn.com/articles/Analysis-2257-Judge-Rejects-FSC-s-Motion-For-Reconsideration-412508.html
The FSC stated that they would appeal the case to the Third Circuit of Appeals if needed.
External links
- Department of Justice Final Rule for 28 CFR Part 75: Effective January 20, 2009 | HTML / PDF
- Text of 28 C.F.R. pt. 75: amendments to the regulations became effective on June 23, 2005, via GPO Electronic Code of Federal Regulations
- Historical Background to Section 2257 at my.execpc.com