Little-Known Statutory Threat to Online Pornography
Date: Sunday, November 10 @ 22:04:41 EST
Topic: Free Expression


Adult Video News reports on a meeting of the Free Speech Coalition (an adult entertainment industry association) featuring two First Amendment attorneys (Free Speech Meeting Gave Good Info That Not Enough Heard). J.D. "Joe" Obenberger, of Obenberger & Assoc. (whose firm's website resides at the URL www.xxxlaw.com), and Gregory Piccionelli, Founding Senior Partner of Brull, Piccionelli, Sarno, Braun, and Vradenburgh, were the featured speakers. In addition to comparing himself to John the Baptist and decrying his hunch that the DOJ will begin indicting pornographers en masse following hostilities in Iraq, Obenberger pointed out (and Piccionelli agreed) that there is a real legal threat to those who publish sexually explicit materials on the Internet: 18 USC 2257.

18 USC 2257 is a real danger to publication on the Internet. This little known aspect of the federal anti-child pornography laws (which include 18 USC 2251-60), requires those who produce visual depictions of actual sexually explicit conduct to maintain records about the identities and ages of the performers. Those who don't are subject to 2 years in jail for a first offense. This law never made any sense, but its burdens on speech were relatively minor when pornography was generally produced for profit. Now that amateur pornography is readily distributed via the Internet, these record-keeping requirements substantially burden constitutionally-protected speech. This is a statute whose enforcement should be carefully watched. I'll be writing more about its unconstitutionality in the future.

PS I believe there is a reasonable argument as to why 18 USC 2257 violates the copyright clause. Any guesses as to why I might think that?







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