by Beth Callaghan
This column originally appeared on PlanetOut.com .
You may not be aware of it, but you just dodged a bullet.
A true crisis of civil liberties has been narrowly averted, at least until Sept. 7. On June 23, 2005, Federal District Court Judge Walker Miller affirmed an agreement between the U.S. Department of Justice and plaintiffs in the case, temporarily blocking the enforcement of rules that would have forced many Web sites featuring adult material to shut down, cut back services or change their business plans.
What does this mean? Members of the Free Speech Coalition, of which PlanetOut Inc. is a member, maintain that your First, Fourth and Fifth Amendment rights are at stake, as well as the constitutional definition of legal search and seizure, just for a start.
Who are the actors in this American drama? A cast of characters no less varied than Attorneys General Janet Reno, John Ashcroft and Alberto Gonzales, and the above-mentioned Free Speech Coalition—with a cameo by porn-star-turned-actress Traci Lords.
The law threatens Web sites that show adult photos and images in retail offerings, personal ads or other member-generated content, as well as the porn industry in general. It originated in 1988 with a government mandate to stamp out child pornography. That legislation, nicknamed the 'Traci Lords Act,' was aimed at producers of sexually explicit videos and films, and was designed to protect minors like Ms. Lords from exploitation by requiring those producers to maintain files with government IDs of all performers—and to make those files available for federal government inspection.
In 1998, President Clinton's Department of Justice attempted to broaden the interpretation of 'producers' of such material to hold culpable those who re-publish the material as well as those who create it.
In a legal challenge to that ruling, Sundance Associates v. Reno, the 10th Circuit Court of Appeals ruled that the plaintiff, a publisher of magazines for swingers, was not subject to the jurisdiction of 18 U.S.C. §2257 for publishing sexually explicit photos of consenting adults. The 10th Circuit also ruled that the Justice Department, under the leadership of Attorney General Janet Reno, had overstepped its bounds by expanding the definition of the word 'producer' in the original law into 'primary' and 'secondary' producers in its regulations.
On May 24, 2005, Gonzales tried an end run around the 10th Circuit, reissuing the regulations and giving sites only until June 23, 2005—today—to comply.
According to the regulations, countless Web site operators would be held to the onerous burden of maintaining, in effect, copies of the government-issued identification—U.S. only—of every individual with a photo that could be considered 'sexually explicit.' And here's the rub: The regulations applied not just to every individual, but to every individual photo, retroactive to June 1995. Failure to comply would result in up to five years in prison for the first offense, and up to 10 years for every subsequent offense, with sentences computed sequentially, not concurrently. Compliance, in this famously business-friendly political climate, would require bookkeeping on a gargantuan scale, even for small operations, and inspections would be conducted without warrants.
Essentially, your ability to exchange material that could potentially be considered sexually explicit by the Department of Justice would be crippled, and along with it, your rights to privacy and free speech.
This is all implemented under the guise of 'prevent ( ing ) the exploitation of children.' Who could argue with that logic? In response to the Free Speech Coalition's suit, Gonzales stated that, 'With this lawsuit and motion for a temporary restraining order ... plaintiffs seek to deprive the government of an important tool in the fight against child pornography.'
Ironically, what gets all but lost in the debate is the question of whether these regulations, under 2257, actually would serve to protect children from sexual exploitation. On the Web site for the Free Speech Coalition, writer Mark Kernes points out 'given the enormous scope of the regulations, and the unlikelihood that they will prevent one single minor from appearing in a sexually explicit depiction—the four minors who did manage to sneak into the adult video industry in the past 20 years,' of whom Ms. Lords is arguably the most famous example, 'reportedly all had identification documents that would have passed muster even under the new regulations.'
But since the stated purpose of 2257 is to protect children, its broader impact has gone surprisingly unnoticed by the general media, and it has elicited very little outrage outside the small community of the Free Speech Coalition. Free speech advocates argue that it provides the Bush Administration and its allies in the religious right with powerful legal and rhetorical tools to silence Web sites and media outlets it finds offensive, and point out remarkable continuity with the kind of dramatic, sweeping 'with us or against us' language used to galvanize support for the war on terror and to advance the Patriot Act.
Because of the danger of selective enforcement of these regulations, many fear that the current cultural and political climate—with such a widespread movement against the so-called 'homosexual agenda' by religious groups—provides the current administration with a convenient tool to go after LGBT freedoms first.
The case continues on Sept. 7, 2005.
We dodged a bullet this time. Let's be better prepared the next time.
Beth Callaghan is editor in chief of PlanetOut Inc.
