Section 2257 of title 18 of the U.S. Code requires that “producers” of photographs and films of “actual sexually explicit conduct” create and maintain records documenting the age of the performers depicted in those performances. The statute’s purpose is to ensure that the performers are not minors. This recordkeeping statute has generally been limited to the adult film industry, although recently the statute’s impact has crept into the realm of mainstream film and television. For over two decades, the statute has withstood numerous constitutional challenges by the adult film industry and civil libertarian organizations. On October 23, 2007, however, the U.S. Court of Appeals for the Sixth Circuit held that § 2257 was overbroad on its face and therefore unconstitutional.

Although the Sixth Circuit has since vacated the Connection III decision to rehear the case en banc, this decision marks the first time that a federal appeals court has struck down the recordkeeping statute on constitutional grounds. Ironically, the victorious plaintiff was not the adult film industry or a civil liberties organization but rather a non-commercial “swingers” publication in which married couples published explicit photographs of themselves to seek out other married couples for sexual relationships. While the court protected the constitutional rights of swingers, this decision will also impact the speech rights of both the adult film industry and the mainstream entertainment industry. Even though the full Sixth Circuit decision will replace that of the appellate panel, the reasoning in the earlier decision will lay out the framework for the arguments in this case and future challenges to the statute.

The Birth of 18 U.S.C. § 2257

In 1986, the Meese Commission issued its final report following its investigation into the impact of pornography. At that time, there was significant media attention and controversy involving “Traci Lords,” a woman who performed in dozens of adult films despite being under the age of eighteen. Two years later, Congress enacted the Child Protection and Obscenity Enforcement Act of 1988, creating § 2257 of title 18 of the U.S. Code which authorized the Attorney General to promulgate regulations requiring producers of sexually explicit materials to maintain records ensuring that all adult entertainment performers were, in fact, adults.

In the nearly twenty years since the passage of the statute, § 2257 has endured numerous court challenges, both questioning the constitutionality of the statute itself and the validity of the Attorney General’s regulations. In 1995, one aspect of these regulations became especially controversial. Not only were “primary” producers required to maintain records attesting to the age and identity of the performers, but “secondary” producers (that is, anyone who “publishes, reproduces or reissues” explicit material) were also obligated to maintain such records even if they had no contact with the performers. Furthermore, § 2257 authorizes federal agents to conduct inspections of these records without advanced notice. The regulations as they applied to “secondary” producers were struck down by the Tenth Circuit.

In 2003, Congress amended § 2257 to expand the definition of the term “produces” to include creation of a “computer generated image, digital image, or picture.” Following this amendment, the Attorney General updated federal regulations, again requiring “secondary” producers to maintain records of performers. This rule caused a great deal of concern throughout the Internet, since anyone who posts a sexually explicit image on a website would need to maintain records of the performers, even though he or she would invariably have no contact with the performers.

These updated regulations concerning “secondary” producers were nearly identical to the regulations that the Tenth Circuit struck down in Sundance. Later that year, a federal district court issued a preliminary injunction enjoining the government from enforcing the new regulations. Congress, in an apparent attempt to enshrine the twice-invalidated regulations, enacted the Adam Walsh Child Protection and Safety Act of 2006, which added many of the definitions of “secondary” producers to the statute itself.

The Government Expands the Recordkeeping Requirement to Hollywood: The Birth of § 2257A

The passage of the Adam Walsh Child Protection and Safety Act of 2006 also created § 2257A of title 18 of the U.S. Code. Section 2257A requires producers of “simulated sexually explicit conduct” to create and maintain records relating to the age of performers. Unlike § 2257, which defines “actual sexually explicit conduct,” § 2257A never lays out a definition of “simulated sexually explicit conduct.” This law could thus potentially encompass any Hollywood film that includes a love-making scene.

Mainstream filmmakers should be especially concerned with the language of the most recent published § 2257 regulations, in which Attorney General Alberto Gonzales wrote, “Section 2257A requires that producers of visual depictions of simulated sexually explicit conduct maintain records documenting that performers in those depictions not be minors.” Does this mean that a noted film such as Taxi Driver, in which a twelve-year-old Jodi Foster portrays a thirteen-year-old prostitute, is unlawful? What about the more recent controversial film Hounddog, which premiered at the 2007 Sundance Film Festival and portrayed twelve-year-old Dakota Fanning as a rape victim? Even a film nominated for Best Picture at the 2008 Academy Awards may be affected by § 2257A. Atonement has one scene of explicit simulated sexual conduct involving actress Juno Temple, who was seventeen years of age at the time of filming.

Recently, more mainstream filmmakers have been portraying scenes of actual sexual explicit conduct in their films. As a result, even though these works could not be reasonably characterized as pornographic adult films, they are nonetheless under the scope of § 2257.

The Sixth Circuit’s Decision

Connection III was the culmination of twelve years of litigation that had traveled up and down the federal court system. The case began in 1995 when Connection, a publisher of “swingers” magazines, filed suit challenging the constitutionality of § 2257. Along with articles and editorials relating to the “swinging” lifestyle, Connection’s magazine would also include member-submitted sexually explicit photographs of couples seeking to meet other couples.

The court held that the 2006 amendments to § 2257 significantly expanded what materials are impacted by the statute. Specifically, the statute covered all sexually explicit photographs and images regardless of whether they were produced for commercial purposes or with the intent to be shown to others. Consequently, “a married couple who videotape or photograph themselves in the bedroom engaging in sexually explicit conduct would be required to keep records, affix disclosure statements to the images, and hold their home open to government agents for records inspections.”

While the court did not dispute the legitimacy of the government’s goal of eradicating child pornography, it noted that this regulation of protected legal speech does not further that aim. There already exists a statutory regime that makes the production and distribution of child pornography illegal. In that regard, the court held that the § 2257 is overbroad and infringes on constitutionally protected speech.

In holding that the statute was overbroad, the court identified two constitutional rights that were being infringed. First, adults have the constitutional right to engage in sexual conduct. Second, individuals have the right to engage in anonymous speech—a right violated by § 2257’s requirement that individuals reveal their real names.

The court further warned that statutes are especially suspect when “enforcers can seek out and silence particularly disliked people or speech.” The court appeared to frame “swingers” as such a group deserving of constitutional protection. Finally, the court identified the chilling effect of § 2257:

The court also identified another fatal flaw in the statute: producers were required to maintain records for all performers, even if they were unmistakably of legal age. The court feared that the statute burdened speech that in no way resembled child pornography. Indeed, married couples in their fifties or sixties who take photographs of themselves engaging in sexually explicit conduct would be subject to severe criminal penalties if they failed to maintain the proper records. Advocates for the adult film industry often cite to the examples of noted adult stars Nina Hartley and Ron Jeremy, who must comply with § 2257 despite having performed on screen for over twenty years. This begs the question of how requiring middle-aged performers to maintain such records fulfills the government purpose of fighting child pornography. Clearly, the Sixth Circuit was also troubled by this question in holding that the statute was impermissibly broad in chilling this protected form of speech.

The Impact of Connection III

The repercussions of Connection III are unclear, and the only certainty is that there will be a Connection IV. The next several months will be crucial in determining the future of § 2257 and its younger sibling, § 2257A. Nevertheless, Connection III will likely benefit not only the adult film industry, but also Hollywood. As written, these statutes may give great concern to all filmmakers and artists. Will a director choose to cut an erotic scene from his or her film because of artistic reasons or because of legal concerns? Will a casting director refuse to hire a minor actor because the scene involves simulated sexuality? Judging from Connection III,this type of chilling effect will generate heightened judicial scrutiny.

Furthermore, it is interesting to note that § 2257A also permits producers to forego maintaining records of each performance so long as they certify to the Attorney General that they regularly and in the course of normal business collect and maintain such records for tax purposes pursuant to the industry standards. Clearly, this “opt-out” clause was created to provide added protection to Hollywood studios. The opt-out clause in § 2257A may relieve Hollywood producers from much of the overly burdensome paperwork requirements of § 2257, but the question of whether it is unlawful to cast an underage actress for scenes of simulated sexuality remains unanswered.

Section 2257A’s opt-out provision may create another problem, since it creates a scenario whereby two protected forms of speech are being regulated differently. In the case of actual explicit content, each performer must maintain separate records for each performance and cannot opt out. Meanwhile, simulated content can opt out of this requirement merely by submitting a certification to the Attorney General. This difference makes it difficult for the government to assert that the regulations are content-neutral. A future challenge to either of the statutes could easily ask the court to apply a heightened strict scrutiny standard. By passing § 2257A into law, Congress may have given more reason for the courts to invalidate the entire statutory scheme.

While the government is pursuing appellate remedies, Congress could amend the statute to help it pass constitutional muster. The last major amendment to the statute, however, was passed in the closing months of a Republican-controlled Congress. Since the Democratic takeover of Congress, there does not appear to be much political drive to amend the statute in the near future. Depending on the outcome of the Connection matter and the results ofthe 2008 election, though, § 2257 may once again be amended to remedy its constitutional flaws.

Alan R. Levy is a senior associate in the New York City office of Sedgwick, Detert, Moran & Arnold, LLP and is a member of the firm's Media, Entertainment and Sports Law Practice Group.He can also be reached at ALevy1@aol.com.

Preferred Citation: Alan R. Levy, How “Swingers” Might Save Hollywood from a Federal Pornography Statute, 118 Yale L.J. Pocket Part 1 (2008), http://yalelawjournal.org/forum/how-swingers-might-save-hollywood-from-a-federal-pornography-statute.