Should the porn industry have less restrictions?

Great Debates
21

Although I agree with some of what Bricker says here and, as always, his legal analysis is impressive, I think the OP makes some good points.

I*m quite convinced that the proponents of this law did so in bad faith. As the OP suggests, it was partly (or even primarily) designed to impede the production and distribution of porn featuring adults through onerous recordkeeping requirements.

The history of this legislation shows that prior, more honestly drafted statutes attacking all porn distribution were struck down on First Amendment grounds. As impeding internet porn through the front door failed, the drafters of this law chose a back door, dishonest method.

The method? As court precedents allow bans on child porn (for reasons that make sense to me), a law supposedly meant to better accomplish such a ban would survive a First Amendment challenge.

And it worked. Many secondary distributors of adult porn shut down rather that comply. Even sites with incidental nude images took them down rather than worry about renning afoul of the law. This makes the drafters of this law very happy.

I believe that there were and are less restrictive methods available to combat child porn. The Traci Lords situation is so well-known because its an aberation, not because it illustrates a common problem with mainstream porn. Even if this was a widespread problem, whats wrong with allowing the small scale vendor to rely on the records maintained by the producer of the image?

Make the producer maintain the records and certify to downstream vendors that all actors are over 18. What*s wrong with that? Put some teeth in the law to punish producers who lie.

And for the small-scale self-produced images, make the law create a presumption of guilt (of child pron) if the records arent kept that can be rebutted by proof offered by the defendant that the model is indeed 18. Dont make failure to keep records a crime in and of itself.

22

[QUOTE=diggleblop]
Exactly, I couldn’t have said it better. This record keeping law means exactly that, you need documentation of every single person on every single website

[/QUOTE]

Yes, that is the obvious person to charge with that responsibility. And every company–even every mom n pop store–should receive this documentation from the photographer with the license agreement to sell, steam, peddle, distribute, etc.

If the original creators dont comply, then their product will not be sold since no shop would dare distribute it without proper documentation. If every mom n pop shop refused to distribute films lacking proper documentation, the producers/film makers would be sure to start making these papers available.

The mom n pop stores dont have to go hunt down the IDs themselves. It should be included in the shipment of their retail product.

If its websites, then its even easier, not harder. The webmaster of the site can send MomNPop a .pdf of all documentation in the same email as the licensing agreement. That shouldn’t be a problem.
And if you’re the photographer or producer, get the information before you shoot. I couldn’t get a job at Benningan’s without giving them a copy of my ID and SS Card. Doesn’t seem to burden legitimate businesses too much.

Please explain why this is such a burden on anyone.

23

[QUOTE=Evil Captor]
But you’re not addressing the pernicious effect that the law has of making the actual adult pornsite operators liable for doing something they have no interest in doing, just because their paperwork is out of order … very bad law, in my opinion. If the only persons really affected by the law were child pornsite wannabe operators I’d have no problem with it. My suspicion is that the law is a tiny fraction of real underage pornsite operator’s problems. The law primarily affects people who are not its putative targets. Surely you cannot argue that it is a good law.
[/quote]

Your claim here seems to be that the law, in its zeal to ensure that all performers are in fact 18 or older, unduly burdens legitimate website operators. Yes?

Consider statutory rape laws. Of course, this is greatly dependent on your jurisdiction, but these are often strict liability laws – if as an adult you have sex with a fifteen year old, you have committed a crime, regardless of the protective measures you took. You could have secured a copy of her birth certificate, a sworn and notarized statement from her parents that she is over 18, and a video of her high-school graduation party in hand before you sleep with her – but in many cases, if it happens that all those documents were phony, you are guilty. (In practice, someone who did all that would likely be saved by prosecutorial discretion… but NOT by the letter of the law).

Now, do we say that this sort of approach unduly burdens those who wish to sleep with 18-year-olds? Some undoubtedtly do, but most recognize that this burden, combined with a reasonable approach by prosecutors exercising their discretion in bringing charges, is sufficient to create a safety net that enables us to punish true offenders while avoiding innocent mistakes.

I think that’s a valid analogy for this. IF prosecutors exercise their discretion appropriately – that is, you wouldn’t come down on the “NakedGranniesDoingItAll.com” or “MILFsTakingItInTheAss.com” web site operators for their failure to mainatin records, because their pics are obviously of adult models. But you WOULD hold “BarelyLegal.com” and “TeenModelsTakingItInTheAss.com” sites accountable, because they are the ones that potentially place children at risk.

24

[QUOTE=Random]

And for the small-scale self-produced images, make the law create a presumption of guilt (of child pron) if the records arent kept that can be rebutted by proof offered by the defendant that the model is indeed 18. Dont make failure to keep records a crime in and of itself.
[/QUOTE]

Actually, I’d go along with that. That does seem a better approach.

25

Links don’t work.

26

[QUOTE=CurtC]
If you’re asking whether it’s a first amendment issue, no, it’s not. Courts have consistently held that things considered obscene is not protected by it.
[/QUOTE]

Obscene materials are not protected by the Constitution. Obscene materials are illegal is most (all?) places in the United States.

If it’s obscene, then it’s illegal to sell it. The porn we’re talking about is legal and, therefore, not obscene.

27

[QUOTE=Bear_Nenno]
Links don’t work.
[/QUOTE]

Which one? The NakedGranniesDoingItAll.com link?

28

[QUOTE=Antinor01]
I see absolutely no reason to restrict what can and cannot be filmed and then viewed in the privacy of ones home based on if it offends someones sensibilities. You’re not into watersports? Fine don’t watch it, some people like it. You’re not into fisting? fine, don’t watch it. You’re not into…whatever THEN DON"T WATCH IT.
[/QUOTE]
I agree that the things you mention should fall on the “legal” side of the obscenity line. The only thing I was saying was that there should exist a line somewhere. For example, I wouldn’t want one of my neighbors to erect a billboard in his front yard depicting these acts. My point was that free speech is not absolute, and the only debate is about where we draw the line.

29

[QUOTE=acsenray]
The porn we’re talking about is legal and, therefore, not obscene.
[/QUOTE]
And the producers/distributors should have documentation available to prove it. Otherwise, maybe it is obscene. Isn’t that the point?
I have a legal right to drive a vehicle. Sometimes the law requires me to show proof of this. If I don’t have that proof available (License and Insurance Papers) then I have to pay a fine.

This just seems like the ID Every Customer Buying Alcohol policies. It’s really not that big of a deal.

I do beleive, though, that porn produced before the law was inacted should be grandfathered in and exempt from the rule. It would be a huge burden to go track down all those people and papers from the past. But new porn? Just copy the IDs of everyone in the production, black out the personal info and file it away. If you sell the film to another distributor, send them copies of the paperwork.

30

[QUOTE=CurtC]
I agree that the things you mention should fall on the “legal” side of the obscenity line. The only thing I was saying was that there should exist a line somewhere. For example, I wouldn’t want one of my neighbors to erect a billboard in his front yard depicting these acts. My point was that free speech is not absolute, and the only debate is about where we draw the line.
[/QUOTE]

Gotcha. I was responding more about content which I don’t feel should have restrictions, again with the provision that it doesn’t violate other laws.

31

Why should the porn industry have special rules that other entertainment producers don’t have?

Couldn’t the same argument about child porn be made about, say, getting clearances to put a song in the soundtrack of a movie? Or clearances for under-age children appearing in a regular film? Should Netflix have to keep a record of every clearance required for every movie they distribute? What if they distribute a movie and it turns out that the songs in it weren’t cleared through ASCAP/BMI? Should they be held responsible?

No. The responsibility lies with the content producer. If he doesn’t get the requisite clearances, and therefore the film has to be pulled from the shelf, he’s opened himself up to lawsuits from not only the copyright owners, but the distributors of the film like Netflix who lose money.

The producers of porn already by law have to file clearances and proof of age for all actors. Why isn’t this good enough? Or if it needs to be tougher to get rid of the fly-by-nighters, something more reasonable could have been done like creating a ‘bonded’ porn producer who has to put up a $50,000 bond to allow distributors to carry the movie without clearances. Producers that don’t put up the bond have to provide clearance material to every distributor. Something like that.

But in my opinion that wasn’t the intent of this law. The intent of the law was to bury porn sites in paperwork and threats of legal action in an attempt to impose a chilling effect on the industry. Or at least, that’s the way it looks to me.

I’m guessing that part of the problem here is that the porn industry probably doesn’t have very much lobbying power, in part because politicians aren’t likely to accept campaign contributions from the porn industry so they have no incentive to help them. If this were mainstream art, the movie distributors would be lobbying to make the law less restrictive before it’s passed.

32

[QUOTE=Sam Stone]
Why should the porn industry have special rules that other entertainment producers don’t have?
[/quote]

Because it’s perfectly legal to film a fifteen-year old going fishing, for the movie Meet Billy Bluegill. It’s not legal to film a fifteen year old performing oral sex for the movie Eat Billy Bluecock.

Other entertainment producers do not violate the law in their products even if their subjects are underage. Porn producers are in the clear if their actors are adults but acting criminally if their actors are underage.

33

[QUOTE=Bricker]
Because it’s perfectly legal to film a fifteen-year old going fishing, for the movie Meet Billy Bluegill. It’s not legal to film a fifteen year old performing oral sex for the movie Eat Billy Bluecock.

Other entertainment producers do not violate the law in their products even if their subjects are underage. Porn producers are in the clear if their actors are adults but acting criminally if their actors are underage.
[/QUOTE]

But this dodges the question.

Films, music, books and other media can be illegally produced for any number of reasons. Necessary copyrights may not have been obtained. People shown onscreen in a movie may not have signed model releases to allow us of their images. Animals might have been harmed in making the movie (in violation of anti-cruelty laws). Underage actors in a G-rated movie may have worked too many hours in violation of child labor laws. Cars may have been blown up in violation of Federal explosives control laws.

But no one imposes a massive record-keeping duty on Borders Books Records and Video to document compliance with all these laws.

34

[QUOTE=Random]
But no one imposes a massive record-keeping duty on Borders Books Records and Video to document compliance with all these laws.
[/QUOTE]

Actually, that’s a pretty convincing argument.

35

I think I am missing something here, because I don’t see how these new laws would have stopped the Tracy Lords incident. What difference would having her fake IDs on call in dozens of locations have made?

36

[QUOTE=CurtC]
Also not protected is speech that presents safety problems, such as Holmes’ example of yelling “fire!” in a crowded theater.
[/QUOTE]

John Holmes did that?

37

[QUOTE=Biffy the Elephant Shrew]
John Holmes did that?
[/QUOTE]
Yes, during his pre-porn days when he was working as a fire hose.

38

[QUOTE=Bricker]
(In practice, someone who did all that would likely be saved by prosecutorial discretion… but NOT by the letter of the law).

Now, do we say that this sort of approach unduly burdens those who wish to sleep with 18-year-olds? Some undoubtedtly do, but most recognize that this burden, combined with a reasonable approach by prosecutors exercising their discretion in bringing charges, is sufficient to create a safety net that enables us to punish true offenders while avoiding innocent mistakes.

I think that’s a valid analogy for this. IF prosecutors exercise their discretion appropriately – that is, you wouldn’t come down on the “NakedGranniesDoingItAll.com” or “MILFsTakingItInTheAss.com” web site operators for their failure to mainatin records, because their pics are obviously of adult models. But you WOULD hold “BarelyLegal.com” and “TeenModelsTakingItInTheAss.com” sites accountable, because they are the ones that potentially place children at risk.
[/QUOTE]

Prosecutorial discretion is a wonderful thing, but I can’t sign on to the Let’s Not Worry About Overbroad and Burdensome Laws Because Wise Prosecutors Won’t Apply Them If Unjust school of thought.

Two reasons, one general and one specific to this type of case.

First, you could apply this reasoning universally. Ban everything. Or impose massive record-keeping requirements on all human activity. Don’t worry, the Feds won’t come after you unless you’re a Real Bad Guy.

For example, let’s say we’re worried about television preachers who scam old ladies with senile dementia and spend the money on gold-plated bathroom hardware. Do we pass a law that says that all clergy have to keep records of each donation, establishing that all donors are in sound mind? Do we go further, and require that all distributors of the TV show on video keep the same records? Do we say “Don’t worry, we won’t enforce this law against the local Episcopalian minister?”

Second, any fair-minded observer of (1) the Bush administration’s Justice Department over the last 6 years and (2) local lawmakers and prosecutors in large areas of the South and Midwest knows that both have an animus towards porn in general. There are undoubtedly prosecutors out there who would like nothing better than to shut down all those Godless Big-City Porn Distributors From California who are Corrupting Our Local Youth With Their Internets.

Do we really want to rely on the prosecutorial discretion of the State’s Attorney of Boone County, Arkansas? Or even the discretion of the US Attorney for the Southern District of Georgia? Especially when they can (by the very nature of the medium) apply their standards to harass an Internet site that is available nationwide?

39

[QUOTE=treis]
I think I am missing something here, because I don’t see how these new laws would have stopped the Tracy Lords incident. What difference would having her fake IDs on call in dozens of locations have made?
[/QUOTE]

I seem to be missing this point too.

40

[QUOTE=Cluricaun]
I seem to be missing this point too.
[/QUOTE]

You*re not missing anything. The law would not have prevented Traci from doing what she did.

That*s the point. In reality, those who passed this law are after all porn. The underage angle is just a ploy to withstand a First Amendment challenge.