Attorney Alan R. Levy recently published an article in The Yale Law Journal Pocket Part entitled “How ‘Swingers’ Might Save Hollywood from a Federal Pornography Statute.” So eager was Levy to “save Hollywood” from having to keep records to verify that performers engaging in actual sexually explicit conduct are legally adults, that he grossly distorted the meaning and effect of 18 U.S.C. § 2257. Ironically, while exaggerating the negative impact of § 2257, he simultaneously underestimated the problematic nature of a different statutory provision potentially requiring record keeping for performers who engage in simulated sexual conduct.

Pornography in which any performer is under eighteen years of age is “child” pornography, and it is illegal. To facilitate enforcement of child pornography laws, Congress promulgated § 2257. The recordkeeping requirements of § 2257 are limited to instances of “actual sexually explicit conduct.” Because the performers are engaging in actual sex, this is sometimes colloquially referred to as “hardcore” pornography, as contrasted with “softcore,” which generally means simulated sexual conduct.

The names of the performers do not need to be affixed to the pornographic works to comply with § 2257. Only “a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located” does. A typical compliance statement is two or three sentences long. It represents that all of the performers appearing in the work were at least eighteen years old when the photography took place, and it provides a real space address for the designated custodian of records.

When considered through the prism of labor and employment laws, immigration laws, and tax laws, the idea that a contractor would have to ascertain and keep records about the people who perform in an audiovisual work is not surprising or untoward. Given the goal of impeding the production and distribution of child pornography, it hardly seems onerous or unreasonable, despite the strident protestations of one pornography trade group to the contrary. The only pornographer who has been criminally prosecuted for 18 U.S.C. § 2257 violations to date is Joe Francis, who controls the multimillion dollar Girls Gone Wild franchise, and only after he repeatedly filmed underage girls engaging in sexually explicit acts.

Nevertheless, pornographers have asserted that this law is an effort to drive adult entertainment sites out of business under the ruse of fighting illegal child pornography. Section 2257 does not affect the content of pornographic works in any way and imposes only minor logistical burdens upon production and distribution. Barring a proclivity to use underage performers, the contention that the right to engage in commercial distribution of pornography in which the producers and performers are all completely anonymous is more important than a recordkeeping requirement that facilitates identification of child pornography seems overblown. Yet that claim has been indirectly advanced by the libertarian advocacy organization the Electronic Frontier Foundation because of its support of the plaintiffs in Connection Distributing Co. v. Keisler .

In Connection Distributing the plaintiffs were described as people who desired to publish sexually explicit photographs in “swingers” magazines, but did not want to create and maintain records required by 18 U.S.C. § 2257 or provide the publisher of the magazines with identifying information. The government asserted that the recordkeeping requirements were aimed at child abuse, which is conduct rather than speech. In an opinion now vacated pending en banc review by the Sixth Circuit, however, the court concluded that 18 U.S.C. § 2257 was overbroad because it impermissibly impacted what the court framed as a right to speak anonymously and imposed an unconstitutional burden on pornography in which only adults appeared.

The recordkeeping requirements of § 2257 apply only to anyone who “produces . . . materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce.” The meaning of “produces” is limited by § 2257(h)(2)(B)(i) which states that the term “does not include activities that are limited to photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication.” It is further limited by § 2257(h)(2)(B)(ii) and (iii), which state that the term “produces” does not include “distribution,” or “any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers.”

Thus, § 2257 requires that producers of commercially distributed pornography featuring actual sexually explicit conduct verify the age of every performer, keep records about the performers’ identities, and make those records available to the government upon request. The “commercial” limitation is amplified by the associative federal regulations, which explain how the law should be enforced, and state at 28 C.F.R. § 75.1(c)(4)that “producer” does not include persons whose activities are limited to “[p]hoto or film processing, including digitization of previously existing visual depictions,” “[m]ere distribution,” and any activity “that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers.” In addition, 28 C.F.R. § 75.1(d) specifies that “[s]ell, distribute, redistribute, and re-release refer to commercial distribution of a [work] that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, but does not refer to noncommercial or educational distribution of such matter.” A reasonable reading of § 2257 and its associative explanatory regulations is that non-commercially distributed pornography does not trigger the recordkeeping requirements of § 2257. Yet in Connection Distributing Co. v. Keisler, some Sixth Circuit judges interpreted these provisions differently, concluding that “the recordkeeping provisions have an extensive reach,” and that § 2257 was not adequately limited to commercially produced pornography. There are (at least) two classes of swingers and others who may prefer not to comply with the recordkeeping requirement: those who want to distribute pictures or videos of themselves engaging in sex acts, and those who want to distribute pictures or videos of other people engaging in sex acts. As for the first group, it is hard to understand how people commercially uploading images of themselves having sex could have realistic expectations of privacy.

The second group, those who wish to commercially distribute pictures of other people engaged in actual sexually explicit conduct, have an even less compelling claim. Adults appearing in the relevant pornography might be appearing in a magazine or on a web page involuntarily, because they were coerced to pose or perform, or were unaware of or opposed to having explicit photographs taken, or to having the photographs published and widely distributed because they did not wish to become permanent public spectacles. The recordkeeping requirements of § 2257 may offer some safeguards against unwanted exposure to the subjects of these pornographic works, since they cannot be legally commercially distributed without information provided by these performers.

But it is children for whom the protections of § 2257 are clearly intended. Some twelve-year-olds can be made up to look as though they were twenty-five. If a twelve-year-old is one of the performers, the work is “child” pornography. The recordkeeping requirements of § 2257 provide law enforcement officials with the tools to uncover child pornography, while leaving pornographic works that only appear to feature child performers in distribution. Surely that is a content-based distinction that the First Amendment can tolerate.

An Entirely Different (and Probably Unconstitutional) Statutory Provision: 18 U.S.C. § 2257A

In 2006 Congress passed, and President Bush signed, The Adam Walsh Child Protection and Safety Act of 2006.One of its provisions promulgates a recordkeeping requirement for works in which the performers engage in simulated sexually explicit conduct, to be added to Title 18 as § 2257A. Despite Levy’s representations to the contrary, § 2257A does not restrict the use of minors in performances involving simulated sex. It does, however, impose recordkeeping requirements that will demand judgment calls likely fraught with uncertainty about what constitutes simulated sexually explicit conduct and whether minors are implicated or not.

The text of § 2257A contains an important predicate to enactment, requiring the adoption of negotiated regulations before it takes effect. One subpart, § 2257A(h)(1)(A), creates an exemption for commercial enterprises that collect and maintain information including the names, addresses, and dates of birth of all performers pursuant to industry standards. It is, therefore, the Adam Walsh Child Protection and Safety Act of 2006 that will potentially “save” Hollywood from additional recordkeeping obligations, rather than swingers. This provision of § 2257A even expands this exemption to § 2257, and works featuring actual sexually explicit conduct.

It is easy to see how this exemption from both § 2257 and § 2257A recordkeeping requirements will mollify the most vocal, well funded, and socially acceptable producers of pornography—the traditional or mainstream movie studios. It is not at all apparent that it renders § 2257A constitutional. Whether or not § 2257A violates the First Amendment is a complicated question for another day, and will depend in part on regulations that have not even been written yet.

What is clear is that § 2257 and § 2257A are two distinct statutory provisions that are being instrumentally muddled so that any enforceability issues associated with the far more problematic § 2257A fallaciously appear to apply to § 2257 as well. The true agenda of commercial pornographers who oppose § 2257 is that they do not want to be caught or held accountable for using underage performers. Dishonest pornography industry advocates are attempting to advance this agenda by conflating the legitimate and appropriate recordkeeping requirements of § 2257 with the deeply disquieting and probably unconstitutional requirements of § 2257A. They should not be allowed to get away with it, and this rebuttal to Levy’s article is one effort to see that they do not.

Ann Bartow is a Professor of Law at the University of South Carolina School of Law. A more detailed version of this essay is available at http://feministlawprofs.law.sc.edu/?p=3715.

Preferred Citation: Ann Bartow, Why Hollywood Does Not Require “Saving” From the Recordkeeping Requirements Imposed by 18 U.S.C. Section 2257, 118 Yale L.J. Pocket Part 43 (2008), http://yalelawjournal.org/forum/why-hollywood-does-not-require-saving-from-the-recordkeeping-requirements-imposed-by-18-usc-section-2257.