‘Home Pornographer’ Measure Passes House, Angers First Amendment Devotees
A measure targeting “home pornographers” whose work often gets Internet distribution was adopted last week by the House as part of a bill fine-tuning U.S. sex offender registration rules. The adult entertainment industry called the amendment a blatant attempt to “exert control over the sexual practices of American citizens under the guise of protecting children.” Civil rights groups said the move ignores the First Amendment.
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The amendment, based on the Child Pornography Prevention Act, aims to give authorities tools to stop child porn at its source, said sponsor Rep. Pence (R-Ind.) said. The measure will “fix a glaring loophole” by requiring pornographers to record subjects’ names, ages and proof of identification, he said. This also may deter use of minors in porn, Pence said, adding: “The fuel that fires the wicked hearts of child predators is child pornography.”
Under the measure, pornographers would have to let law enforcement inspect their records, with failure to do so a crime. The amendment to the Children’s Safety Act (HR-3132) would extend U.S. jurisdiction to those using Web downloading, digital and Polaroid photography to create an “at-home cottage industry for child pornography.” The proposal essentially would strengthen Sec. 2257 of U.S. Code, a record-keeping rule imposed on adult magazine and video companies by 1988’s Child Protection & Obscenity Enforcement Act. Extrapolations on that provision are the focus of a court fight between the Justice Dept. and the Free Speech Coalition, an online adult entertainment industry trade group. (WID June 27 p1).
FSC said the measure targets adults who privately record visual images of consensual sexual activity and adds nudity and clothed images of pubic areas to a govt. definition of “explicit sexual activity.” The amendment would make it a crime to produce and distribute R-rated mainstream films that don’t adhere to 2257 record creation and notice provisions, and perhaps set up studios for prosecution under obscenity laws, FSC said.
The measure seems to require 2257 records on digital sex images even if no human is involved, FSC said. By striking the word “actual” from the 2257 phrase “actual sexually explicit conduct,” the measure seems intended to apply the law to simulated sex, FSC said. The measure would broaden 2257 to apply to “lascivious exhibition of the genitals or pubic area,” which could be seen as applying to most nude models, and perhaps that are clad, the group said.
Introduced Mon., Pence’s original bill (HR-3726) was attached Wed. to the Child Safety Act (HR-3132), with the blessing of that bill’s co-sponsor, Rep. Sensenbrenner (R- Wis.), but without any debate on its merits, FSC charged. The Sensenbrenner bill, passed 371-52 by the House that afternoon, awaits Senate Judiciary Committee consideration. The Senate has its own sex offender bill (S-1086) but no companions to Pence’s measure have surfaced, staffers told us.
A close reading of HR-3726 reveals “far more ambitious legislative objectives,” than “home pornographers,” adult entertainment industry attorneys said. The measure would alter 2257 to include simulated, written and illustrated content, directly implicating many if not most Hollywood films, FSC said. This change would expand federal forfeiture laws’ reach to include 2257 violations and obscenity convictions, and enhance administrative subpoena power to cover obscenity cases, the group alleged. That would make it easier for the govt. to obtain records in a legal proceeding without having to show a judge probable cause, FSC said.
FSC Board Chmn. Jeffrey Douglas said Pence’s measure, approved by the Senate or not, shouldn’t have a direct impact on the group’s case against DoJ. “If this horrific bill were to become law in its current form, it would change some of our arguments, indeed strengthening several. For the purposes of the awaited ruling on our preliminary injunction request, it should have no effect whatsoever,” Douglas said.
The ACLU opposed the measure and provided talking points for House Judiciary Committee members when the issue came up for floor debate. “Pence doesn’t seem to understand the concept of obscenity,” ACLU Legislative Counsel Marv Johnson told us: “Under the First Amendment, speech is protected unless and until a jury says it’s obscene, only then can you do anything about the movie.” This proposal implies that “the mere production of it is a crime,” he said: “Obscenity is not something that government can look at, wave its magic wand and say it’s obscene.”