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Wednesday, August 24, 2005

As part of the Republican Party's continuing war on free speech in the United States, I just discovered United States Code, Title 18, Section 2257, which apparently states that all models, actors, actresses and other persons who appear in any visual depiction of sexually explicit conduct appearing or otherwise contained in a website, magazine, etc., must not only be over the age of 18 at the time of creation of the depictions, but the site or magazine, etc. is responsible for keeping records of same.

Which means that anyone who puts up a naughty image for which they do not personally have the paperwork from the model is now breaking the law.

You can argue this is a backdoor victory against the piracy of pornographic images, since only the original creators of naughty images will have the paperwork. But (under the guise of preventing child pornography) this is clearly a wholesale assault on Internet porn. It also seemsto me to be a fairly blatant violation of the First Amendment, since it constitutes prior restraint. It requires anyone making or disseminating a sexually explicit photography to prove that their image is not breaking child pornography laws.

Granted I won't be heartbroken if there is less Internet porn, not to mention less Internet image piracy. And Lord knows I sympathize with anyone who wants to stop child pornography. It is hard to go after its creators, who could be in Russia or who knows where. This at least allows you to stop people from making money from exploiting children, which reduces the incentive to do it.

But the case sets a precedent. If you can make a law that says I have to prove my sexually explicit image doesn't violate child pornography laws, why can't you next make a law that says I have to prove that my political speech is not an incitement to riot? Or, say, a law that says that I have to prove that my secret tobacco company documents were legally obtained? Or that I have to prove that I have the right to publish the Pentagon Papers?

That's why the doctrine of no prior restraint exists. Let people make the speech, and then we'll see whether it violates laws or not.

I have no idea if the ACLU or anyone else will challenge this law in the increasingly right wing courts. I hope they do. And if the question of "original intent" of the Founders come up, I hope the courts will remember Thomas Jefferson's inflammatory statement, "Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter."

7 Comments:

Huh??

This isn't a Republican conspiracy. The goal of keeping children from being exploited by pornographers crosses party lines. For example, I don't know many left-wing feminists who are pro pornography. In their view, pornography it exploits women (and children) and contributes to violence and abuse in our society.

The Republicans are certainly out to take away personal freedoms, but this is not one of them. Considering the fact that many minors are coerced to participate in pornography, you really don't have a freedom of speech issue here.

Moreover, there's legal precedent. We have already age limits for buying alcohol and cigarettes -- in the interest of protecting minors from themselves. Are you offended that 7-Eleven clerks are legally required to ask for proof of age? Why should it be easier to participate pornography than buy a Budweiser?

By Blogger lisa e, at 4:31 PM  

Also, the U.S. has strictly enforced child labor laws. You're not allowed to work at McDonalds or Dunkin Donuts, et al, unless you're 16 or have a hardship waiver. McDonalds is required keep the paperwork that proves you're legally old enough to work -- or else face government fines. No one suggests this infringes on their rights to sell french fries.

Why shouldn't Sam's Internet House of Fetish have to do the same?

By Blogger lisa e, at 4:39 PM  

The problem is this:

The actual employer does have to keep the records. That's appropriate. But this law isn't that the employer (the person who pays the model) has to keep the records, it's that anyone who subsequently buys and displays the images has to keep those same records.

The analogy isn't McDonalds having to check IDS of people who flip burgers. It's Ford having to have the paperwork which proves that the tires manufactured by goodyear were made legally. Ford buys the tires as a finished product - but the law is equivalent to making them responsible for Goodyear's hiring policies, or they can't sell trucks with the tires.

The other problem with the law is the nature of the industry. The way companies have to comply is that if I, as a photographer, want to sell legal images, I have to sell them in conjunction with a photocopy of my model's ID.

So that means everybody who buys (for further distribution) my images has the ability to track down my model and knock on her front door.

Does this strike you as a good idea? (As a screenwriter, I certainly don't want every theater which shows my films to have a copy of my address, and I think I'm far less likely to be stalked than a woman who takes off her clothes for a living.)

Nobody is claiming that models shouldn't have to be able to prove their overage to the photographer. The law is about who else needs to have proof of the model's age. Lisa, no offense, but you're misunderstanding the issue here.

By Blogger Hotspur, at 5:29 PM  

It's not equivalent to theater owners having your address. Pornography, for better or worse, is intellectual property. If someone buys the rights to reproduce it, he or she should also be able to get copies of the model release. Only someone who is STEALING someone else's photography (and making a profit from it without ever paying royalties) would difficulty getting proof that the pornography was legally obtained.

Even in legitimate publishing in the States, ANY picture of a minor requires a release form, usually signed by a parent. A magazine I worked for once had to pull a story with (non-pornographic) photos of American street children for exactly that reason -- and these were Pulitzer-worthy pictures, not crotch shots.

By Blogger lisa e, at 6:40 PM  

But Lisa, I'm not talking about pictures of minors.

This isn't a law about minors. If you create or distribute child pornography, there are plenty of existing laws under which you can go to jail for a very long time.

If it's about intellectual property, why does this only apply to pornographic images? If you want to protect intellectual property, then you must mean that everybody involved in non-erotic, fine art photography distribution should have to the information of all subjects on hand. Similarly, why not force iFilm.com to get and keep copies of every release signed by every actor in every film it shows?

The fact that this only applies to pornography gives the lie to the claim that it's really about IP.

Let me be very clear: photographers and models DO NOT WANT this law, who you claim it's protecting. Adult performers do not want their private information to be spread widely any more than stars in "regular" movies do.

Again, imagine a law that says if I want to post a legally-owned image of Natalie Portman that I took when I saw her on the red carpet, I had to have her address on file. And if I sold that image - as I have the right to do - I'd also have to sell a copy of her ID.

And yet this is exactly what the law requires for people who create & sell pronography.

By Blogger Hotspur, at 7:08 PM  

Hmm. Okay, I see your point.

But given the ubiquity of child pornography (often from other countries, where model release laws don't exist -- the ultimate in outsourcing), what would you suggest?

By Blogger lisa e, at 7:48 PM  

Well, you raise an interesting concern, but I'm not sure how big a problem it really is.

I mean, how much child pornography is there out there, really. How hard would I have to look to find some?

I don't know the answer to that question. Undoubtably, there's some out there - but so far, it's worth pointing out, the major busts in the news have been private rings, not stuff on your bread & butter, easily available porn sites.

There's good reason for this: people do solicit or distribute child pornography go to jail for a very long time, so they tend to be very secretive about it.

I don't mean to be dismissive, but there's a little bit of Mrs Lovejoy's "Do it for the children" in the presumption that there are mountains and mountains of child pornography on sites which don't specifically solicit it.

Or forget mountains and mountains. My question is this: what percentage of pornography on the internet, on sites which aren't geared specifically towards child pornogaphy, feature actors under the age of 18?

I mean, it seems that the only people this law protects are the 17-year-olds who look 18 and lack the wherewithal to get a halfway decent fake ID - and it seems like a high burden to put on the entire industry for a relatively small number of people.

By Blogger Hotspur, at 10:39 PM  

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