PA Supremes say prison may ban porn to prevent "objectification"

The Pennsylvania Supreme Court this week unanimously rejected a challenge to the state's broad ban on sexually explicit printed materials in prisons. The court did not state conclusively that the ban is constitutional, but held that the plaintiff prisoner had not met the heavy evidentiary burden that courts generally require in order to take a case of prisoners' First Amendment rights to trial.

Here's what Pennsylvania prohibits any prisoner to obtain:

(1) materials in which the purpose is sexual arousal or gratification; or (2) the material contains nudity which means showing the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or showing the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple (exposure through “see through” materials is considered nudity for purposes of this definition).

Infelicitously for his case, the particular plaintiff here was serving a sentence for rape. Even more infelicitously, he represented himself. And to make matters worse, the evidence he was prepared to present consisted of affidavits from fellow prisoners asserting that viewing nudity did not have ill effects on their rehabilitation or day-to-day conduct.

Interpreting a handful of Supreme Court precedents, the court held that a prisoner faces a heavy burden to take a case of individual constitutional rights to trial. The state's burden, it said, is simply to articulate a "rational connection" between its censorship standards and any "legitimate penological interest." If the state can meet that low bar, the prisoner must then present specific facts that call that basic rationale seriously into question. The court was silent as to how a pro se prisoner is to meet this burden in a First Amendment case, where calling into question the state's rationale would seem to require access to expert witnesses, social science research, or the like. In other words, if the state can come up with any rationale that the court will "buy" in the abstract, a prisoner would seem to need substantial outside assistance to take the case to trial.

Be that as it may, the court found that the state's asserted goals were rational, and that the prisoners' affidavits did not raise any genuine question about their validity. What were those goals? The primary rationale accepted by the court was that:

the pornography ban serves to foster the rehabilitation of inmates, including sex offenders like [the plaintiff], and is consistent with inmate treatment objectives, particularly discouraging inmates from “objectifying” others, rather than treating them as individuals.

The court also accepted the state's reasoning that pornography in the prison would lead to a "hostile work environment" for prison staff. While the workplace-harassment rationale, and the idea that pornography will have a particularly dangerous effect on persons convicted of any sex offense, are not new, I believe the "objectification" rationale is not as frequently seen.

While it may seem remarkable - at least to those familiar with philosophical and feminist debates over the concept of "objectification" - that courts would accept this vague rationale at the level of abstract, unsupported logic, one must keep in mind the litigation context. As the litigation around same-sex marriage demonstrates, the ability to overcome vague government interests under a "rationality" test often depends on the ability to go toe-to-toe with the state in contesting its logic. That is to say, a pro se prisoner lacks not only the ability to gather sophisticated evidence in a case like this, but also the resources to engage in the kind of sophisticaed legal argument that may be necessary merely to ge to trial.

Maryland Senate scares UM into canceling film screening

A planned screening of the high-budget porn epic Pirates II at the University of Maryland-College Park this weekend has been canceled after state Senate leaders threatened to cut public funding:

The screening of the multiple AVN Award-winning blockbuster was approved by a student programming committee for a Saturday midnight show. The publicity led to a state Senate debate, according to the Baltimore Sun.

"That's really not what Maryland residents send their young students to college campus for, to view pornography,"said Senate President Thomas V. Mike Miller.

Although Miller called the screening a misuse of tax dollars at the state university, Digital Playground actually offered the film to students for free. The event would have cost no state or student funds.

"This incident in Baltimore is very sad, but we are thrilled that our film has sparked a very important debate about censorship," Adella told AVN. "The Pirates II screening was unanimously approved by the student programming committee, and there was no legitimate reason to cancel the event."

Nonetheless, Sen. Andrew P. Harris suggested state budget cuts to deny funding to any higher education institution screening a porn film outside of an official academic course.

Miller backed the proposal. With millions in state funds hanging in the balance, UM President C.M. Mote, Jr. caved in and squashed the planned event after a closed-door debate between school administrators and state Senate officials.

It's safe to assume that the state Senate spent many times more public money in getting this screening stopped than would have been spent on the screening.

No word on whether students plan to sue the school for its cowardly cave-in. If the state actually managed to pass such a funding restriction, it would undoubtedly be invalidated as a naked content-based restriction. Off the top of my head, I see no reason why the University president's decision to cancel the showing should not be similarly unconstitutional.

Spurious threat of prosecution used to shame teens

District Attorney George P. Skumanick of Wyoming County, PA isn't content to hop on the bandwagon of prosecuting teens for taking and sharing smutty pictures of themselves and one another under the child pornography laws. No, he's decided to use his legal muscle to put the fear of God (or more accurately, prison) in teens over material that is indisputably legal. Fortunately, these teens did the right thing: called the ACLU, who are helping the youngsters and their parents sue the local prosecutor.

Here's what happened, from the New York Times:

The picture that investigators from the office of District Attorney George P. Skumanick of Wyoming County had was taken two years earlier at a slumber party. It showed Marissa and a friend from the waist up. Both were wearing bras.

Mr. Skumanick said he considered the photo “provocative” enough to tell Marissa and the friend, Grace Kelly, that if they did not attend a 10-hour class dealing with pornography and sexual violence, he was considering filing a charge of sexual abuse of a minor against both girls. If convicted, they could serve time in prison and would probably have to register as sex offenders.

It was the same deal that 17 other students — 13 girls and 4 boys — accepted by the end of February. All of them either been caught with a cellphone containing pictures of nude or seminude students, or were identified in one or more such photos.

But three students, Marissa, Grace and a third girl who appeared in another photo, along with their mothers, felt the deal was unfair and illegal. On Wednesday, they filed a lawsuit in federal court in Scranton, Pa., against Mr. Skumanick.

They asked the court to stop the district attorney from filing charges against them, contending that his threat to do so was “retaliation” for the families asserting their First and Fourth Amendment rights to oppose his deal.

You go, girls. The ACLU of Pennsylvania's complaint (PDF) describes the content of the pictures:

One photo shows Marissa and Grace, from the waist up, lying side by side in their bras, with one talking on a telephone and the other making a peace sign. The other photo shows Nancy Doe standing upright, just emerged from the shower, with a white towel wrapped tightly around her body just below the breasts. The two photographs, which depict no sexual activity or display of pubic area, are not illegal under Pennsylvania’s crimes code and, indeed, are images protected by the First Amendment.

I've posted about this topic before, and there's an excellent, excellent post about it over at Yes Means Yes!, so I'll just say a few things about this case.

First off, let's note that Skumanick threatened not only child porn charges but also charges of sexual abuse of a minor. The relevant Pennsylvania law makes it a second-degree felony to "knowingly photograph... a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act," including "nudity [that] is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." Pa. Stat. Tit. 18 s 6312. The laws's plain language doesn't exempt minors from prosecution. But the plaintiffs have it right here: while the definition of nudity-for-the-purpose-of-sexual-stimulation is potentially broad, it clearly requires actual nudity, not just topless or underwear-clad pictures.

Second, for basically the same reason, it's patently clear that these girls' pictures wouldn't be "child pornography," but in fact would be fully protected by the First Amendment. Simply put, teens showing a little skin isn't a crime, or the Delia's people would be in big trouble. Indeed, the complaint alleges that:

The plaintiff minors will in the near future want to be photographed in their bathing suits, for instance during the summer when they go to a swimming pool or the beach, to which the respective parents have no objection. They are, however, chilled in their ability to take such photographs because of concern whether Skumanick will find them “provocative.”

Even baring your breasts doesn't make it "pornography," even if the local D.A. thinks it's "provocative."

No, this is a transparent case of a law enforcement official threatening prosecution for plainly legal, indeed constitutionally protected, material, in an attempt to shame and frighten kids away from ever engaging in such constitutionally-protected experimentation again.

Interestingly, the girls' mothers are suing on their own behalf too; the suit frames Skumanic's threats as a threat to parents' constitutional right to direct their children's upbringing and education by forcing them into "a re-education program wherein the girls must discuss why their conduct was wrong and what it means to be a girl."

Finally, it strikes me as more than a little suspicious that Skumanic's spate of prosecutorial threats targeted girls by a 4:1 margin. I doubt this merely reflected which local students were taking, posing in, or passing around racy pictures. More likely, girls were targeted because the main point of the exercise was to enforce traditional notions of female modesty.

Roundup

This week in Washington:
- Obama reverses Bush's ban on federal funding for embryonic stem cell research
- A provision of the just-passed budget bill will help make contraception more affordable for many
- Today the White House launches a Women & Girls' Council, which hopefully will be more than symbolic

In Saudi Arabia, a 75-year-old widow has been sentenced to four months in prison, forty lashes, and deportation for having two unrelated men in her home. The two men -- one of whom is her deceased husband's nephew, and both of whom have also been sentenced -- were apparently bringing her some bread. Her lawyer plans to appeal. More at Religion Clause.

On a much less weighty note, a law professor at the University of Montana complains that the student newspaper's sex advice column "affects my reputation as a member of the faculty" -- no, really --and has suggested the state legislature should tighten restrictions on student publishing. According to the paper in question, the prof complained that legislators should set "criteria for giving someone a job as a columnist writing in an area of 'alleged expertise' or for reviewing objectionable material." Being a law prof, she's come up with proposed restrictions that just pass the First Amendment red-face test, but something tells me this isn't going anywhere. Are authors in student papers really expected to be experts? And what standards should the legislature set to qualify as a sex columnist?

Finally, Cook County, Ill. Sheriff Tom Dart is suing Craigslist, claiming its "erotic services" ads are a public nuisance. Sex worker rights advocates have, naturally, criticized the suit, which probably amounts to little more than a publicity stunt. Craigslist says it's "mystified" by the suit, pointing to its cooperation with law enforcement in Illinois and elsewhere to minimize use of the site to violate the law. One Internet law expert has opined that the lawsuit can't stand, because under federal law Craigslist can't be held liable for users who seek to violate the law unless it actively helps them do so. (Said lawyer also wonders whether there are actually many "erotic services" posts on Craigslist that are only advertising legal services, but a quick search of the many postings specifying "no sex" suggests that yes, there are; most of them are for pro-Dommes.)

Evidence, the First Amendment, and 2257

Aside from the observations in my previous post, one thing that stands out about the en banc opinion in Connection Distributing Co. v. Holder (PDF) is its repeated demands for evidence to substantiate the plaintiffs' First Amendment claims. The dissenters spend much of their ink explaining why the court's evidence-focused analysis is inappropriate for a First Amendment challenge such as this one. In my view, the en banc majority's approach is not only inconsistent with First Amendment principles; it also seems to discriminate against sexually non-conforming speakers - here, as Judge White puts it in dissent, "all adults who desire in any fashion to create, share, or disseminate non-obscene, sexually-explicit depictions of themselves, or other adults, without relinquishing their anonymity." I will attempt to summarize.

Evidence re: enforcement. As Judge Kennedy discussed as length in dissent, it is most improper for the court to base its ruling in large part on the fact that 2257 has never yet been enforced in the settings at issue in this case. To uphold a law because its most dubious applications have not been enforced turns First Amendment law on its head. As Kennedy writes, "A very purpose of the overbreadth doctrine is to invalidate those law whose statutory language gives such sweep that law enforcement can selectively enforce the law on the basis of the speech’s content." Moreover, it is a cornerstone of the law that unenforced laws, especially vague or overbroad ones, promote an unacceptable self-censorship.

Evidence re: the adult entertainment industry. The court relies on the Meese Commission report and some general statements in the record to conclude that most pornography involves adults who are sufficiently youthful that they could readily be mistaken for minors. Relying on this broad generalization, it concludes that to the extent 2257 is overbroad in its application to material where performers/models are clearly of age, that overbreadth cannot be "substantial" because it is so rare for adults over, say, 25 to get in front of the camera. The court continues "Connection has not pointed us to any" adult publication featuring exclusively mature or middle-age adults, "and has not introduced any evidence showing that this...situation even exists." Although I will not link to any here to protect your delicate sensibilities, one need hardly be a dedicated porn collector to be aware that such publications, and videos, and websites, do exist.

Moreover, even acceping the dated and politically rigged Meese findings, they concern solely professional, commercial pornography. The majority accepts that 2257 applies to noncommercial speech, and it hardly needs to be proved that following recent leaps in digital technology there is a lot of amateur and/or noncommercial pornographic speech going on, which cannot simply be presumed, absent evidence, to match trends of the porn industry in the 1980s. Which brings me to a third point.

Evidence re: existence and prevalence of variant sexual speech.The court complains that "the record is utterly barren about whether some, many, indeed any, American couples are affected by [the] application of the statute [to home production of explicit materials for private use]-and, if so, in what ways." This line may have made more sense before the invention of the digital camera, or indeed the Polaroid camera. Does the court really need a record to show that anyone engages in home production for their own use? Moreover, the court has before it, in addition to Connection, an anonymous swinger couple who wished to publish explicit personal ads with home-produced images in Connection's publications. Surely it's hardly a leap from "this form of middle-aged sexual expression," as the court terms it, and one in which similar couples take sexy pictures but don't seek to publish them in a swinger mag.

The point of all this, I think, is that the court wouldn't require evidence that a potentially broad category of speech even exists in other First Amendment contexts. As Kennedy points out: "The Supreme Court has never done this." I don't think this is purely result-oriented, however. I think it is a specific reaction to sexual variance: to some jurists, variant sexualities are a mysterious black box, the contents of which are generally assumed not to matter or even exist unless proven. This suspicion is reinforced by the following statement dismissing swingers' privacy concerns regarding 2257:

It may be that there are advertisers in Connection's magazines who have greater privacy concerns about revealing their identities to law-enforcement officers for the limited purpose of confirming their age than about revealing their identities to unknown inquirers for the purpose of facilitating a liaison. But the question is whether such individuals would have a cognizably reasonable basis for suppressing their communications in this setting, and that is something Connection's affidavits and evidence do not support.

The court finds it unimaginable, absent proof, that people who engage in recreational sex with new acquaintances could possibly be concerned about disclosing their identities and activities to non-swinger government officials. The court also demands proof of what Judge Moore, in dissent, finds obvious: "Revealing one’s sexual tendencies to the government is very different from revealing these tendencies to someone who has been chosen and pre-screened and is known to share these same tendencies." Whoever these strange people are, the court finds them incomprehensible, and demands proof that they exist and that there is any rhyme or reason to what they do. As Judge Moore recognizes, the result is a baseless imposition of the 2257 requirements on a sizeable American subculture to which there is virtually no reason to apply it.

2257 upheld: swingers have no privacy interests?!

The full Sixth Circuit on Friday rejected a constitutional challenge to tough federal record-keeping requirements (PDF) for sexual imagery in print and online, on a partisan 11-6 vote.

A panel of the appeals court held the Section 2257 law unconstitutional in 2007. But in the ideologically polarized, conservative-dominated Sixth Circuit, a grant of en banc review almost invariably means a very conservative ruling – in this case, written by archconservative Jeffery Sutton. AVN has a quicky sketch of the case, which was brought by a small magazine that publishes explicit personal ads for swingers.

Some general observations:

The court considers 2257 to be a “content-neutral” law subject to “intermediate” scrutiny. This is because, although the law clearly is based on content, it is also aimed (ostensibly) not at content itself but at fighting child pornography. This part of the ruling is arguable but quite plausible; it gets worse from here.

Sutton is baldly derisive of the swingers who submit their pictures to the plaintiff publication and their interest in the privacy of their identities. “To the extent the advertisers are concerned that the law gives the government access to their names, addresses and other identifying information,” he writes, “they haveo more to complain about than every taxpayer in the country.” The difference being, of course, that IRS records – unless you're taking some very unusual deductions – generally don't attach your identity to your sexuality. Regardless, Sutton appears to believe that swingers don't actually have privacy interests, because:

Under § 2257, it is true, the government has access to these images and the identities of the individuals for the limited purpose of ensuring they are of age. But under Connection’s business model, so potentially does the rest of the world. The essence of the company’s service is to facilitate non-platonic connections between anonymous advertisers and anonymous subscribers, something it does by giving advertisers the opportunity to respond to inquiries they have solicited and by giving advertisers the opportunity to lift the veil of anonymity, to say nothing of other veils, to these unknown inquirers.

You've got to be kidding me. Because these people engage in casual sex, we assume that they have no sense of privacy whatsoever? That's what Judge Sutton seems to think; he goes on to say that maybe some of these people are more concerned about being outed to the feds than to other swingers, but there's just not enough evidence. This is a classic sexphobic move: sexually unconventional people, because they transgress certain normative sexual boundaries, are assumed to have no boundaries whatsoever.

In keeping with this sexphobic theme, the decision repeated relies on factual findings from the notorious and discredited 1986 Meese Commission on Pornography Report, for example to suggest that pornography almost invariably features very young adults and that there is a serious danger of minors ending up in what is marketed as adult pornography. Even if we take these findings at face value, they were made before the adult entertainment industry itself undertook strong and ongoing efforts to combat child pornography and keep minors out of porn.

Legally speaking, Sutton focuses on 2257 as an age-verification system, and largely ignores the burdensome how-when-where details that are at the heart of objections to the law. This may be because the plaintiffs focused on the argument that age verification shouldn't be necessary when material involved individuals who are clearly not young. Interestingly, though, even Judge Sutton admits that "the law would have difficulty withstanding an as-applied attack by a mature-adults-only magazine that included photographs only of readily identifiable mature adults." The decision also entertains the possibility that the law might be invalid as applied to private individuals producing material for their private enjoyment. In addition to these possibilities, the decision does seem to leave room for a variety of attacks on the devilish details of 2257.

On the other hand, the court holds that these aspects and applications of the law have to be challenged piecemeal -- that the law is not so clearly invalid in so many situations that it should be struck down altogether. And (contrary to the argument of at least one 2257 defender), the court agrees that 2257 does apply to the noncommercial material.

These points and others are covered in the four cogent dissenting opinions. I'll have more to say in another post about the court's questionable approach to questions of evidence, both regarding the impact of the law and the sexual expressions it affects, and how it is in tension with First Amendment principles and reflects the court's sexphobia.

South Carolina vs. the Lion('s Den)

The courts are full of litigation over the validity of numerous state and local laws regulating the existence, locations, hours, and advertising of sexually-oriented businesses of all kinds. This litigation has produced its own body of law and legal cottage industry, and is ably chronicled by blogs such as The Legal Satyricon and Meeting the Sin Laws. I post about this particular case not because it breaks new legal ground but because it explans a phenomenon I have often wondered about on my cross-country road trips: the Lion's Den highway signs.

The Lion's Den is one of the biggest chain stores selling pornography and sex toys in the US. Toys in Babeland they're not, and their unpretentious stores – perhaps catering to the truck-driving profession – are often located in rural and small-town areas alongside major highways. If you live in the eastern US, you've probably seen these signs. Sometimes they look like the one pictured here: big bold black and yellow text right by the roadside. But in many locations you won't see signs like these. Instead, you'll see a ridiculously tall pole emanating from somewhere off the highway, with a little sign that reads only: “ADULT.” It takes a moment to realize that these signs are actually on the store premises, but are built tall enough to be seen from the highway. (You can imagine the fun I had searching, without success, for a photographic example. It included the gem: "Adult World: Don't Forget Mom on Mother's Day.")

Why? Because some places, like South Carolina, forbid roadside advertising for anything to do with sex. No matter that the billboards contain nothing but euphemistic text; if it's “adult,” it can't be advertised on the highway. The on-premises signs are the Lion's Den's loophole.

Such silly laws have been challenged before - for example, Missouri's was struck down in 2006, and Georgia's in 1998 - and South Carolina's is on its way out. It was passed in 2006 and would have required all existing signs to be eliminated this month, but a federal district court this month entered an injunction to stop the ban going into effect. Carolina Pride, Inc. d/b/a The Lions Den v. McMaster, 2009 WL 238206 (D.S.C. Jan. 30, 2009).

The court rejected a series of justifications by the state that rise, or perhaps sink, to the level of entertainment. Their first justification is old hat in billboard-related cases: the signs will dangerously distract drivers, "including easily distracted teenage drivers." The court says, in effect, please. We're not talking about the billboards for Dejavu Showgirls in my native Louisville, Ky., which pretty much show you what they're advertising. Just text here, folks - and that's about as likely to distract drivers as "any other road signs which may cause the driver to begin thinking of something other than the road ahead (which is, of course, the purpose of all billboards)." The court also said that the law wasn't justified based on the perceived risk that the signs would attract minors to the stores. The court notes that this would only be a problem if they managed to get into the store, which the store is not supposed to let them do.

The court also rejected a couple of particularly amusing arguments, starting with the danger that parents might, Heaven forfend, have to explain to their kids what these signs are for. The court said:

In the modern age, parents are often required to limit their children's access to inappropriate materials including radio and television programs, books, videos and even certain articles (or advertisements) in newspapers in which a child might see announcements.

But my favorite part of the opinion deals with the state's attempt to invoke the harmful "secondary effect," of adult businesses. Most regulations of adult businesses are premised on the secondary-effects doctrine, which essentially blames porn shops and strip clubs for increasing all manner of criminal activity in the surrounding area. It's hard to tie this to advertising, but the state gives it a go, saying that the Lion's Den signs attract "transient customers who have a higher likelihood of committing criminal offenses in the surrounding areas." The court's reply:

At oral argument, defense counsel repeatedly used the term “transients” to refer to those non-local persons traveling the public highways who might visit an adult business. In other contexts, South Carolina officials refer to non-residents who may spend money in the State as “tourists.” Tourism is, in fact, heavily encouraged by the State through, inter alia, the State's current standard license plate which bears the motto “Travel2SC.com .”

Since it's only a preliminary injunction, of course, the State of South Carolina will have the opportunity to spend more taxpayer dollars trying to scare up evidence, or whatever it wants to try to pass off as evidence, to change the court's mind.

Does an anti-porn documentary violate federal law? (cont'd)

Way back in November, I blogged about then-brewing blogtroversy over a new agitprop film, which argues that pornography is harmful to society. Particularly interesting to me was contention over whether the film, which contains copious excerpts from commercial porn films, violates the federal recordkeeping requirements for pornographers, known as Section 2257. I promised to take a close look at this legal question - but I didn't get around to it until now. Better late than never.

The basic duty. The core of the law, 18 USC 2257, is this:

Whoever produces any ...film [or other media] which contains one or more visual depictions ...of actual sexually explicit conduct...shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

Seems pretty straightforward. And the definition of "produce" in the law is very broad indeed. It includes:

digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct...

This clearly covers "secondary producers" who repackage content originally created by others - including documentary filmmakers. I therefore think it's reasonably clear that 2257's recordkeeping duties extend to the makers of a film like The Price of Pleasure.

"Fair use" does not apply to 2257. I have encountered three arguments to the effect that 2257 does not extend to this film. The first is that the film constitutes a "fair use" of the explicit images that is permitted by law. This is something of a non sequitir, since the "fair use" defense applies only to the law of intellectual property - as reflected by the fact that the film begins with a "Fair Use Notice" that references the US Copyright Act, and not 2257. It is fine so far as it goes - the makers of The Price of Pleasure should be safe from an infringement suit by the pornographers whose work they excerpt - but is irrelevant to 2257. Nor is there reason to expect that courts would impose a "fair use" exception to 2257 based on the First Amendment, since the fair use doctrine was developed to balance the competing interests that arise in IP disputes; the court has never referred to it in discussing the regulation of child pornography, which is the basis for 2257.

Is there an "obscured genitals" exception? A second argument is that 2257 does not apply because the documentary digitally obscures the naughty bits of performers in the various porn films it excerpts, thus rendering it no longer "sexually explicit." This argument has a superficial appeal, but doesn't seem to comport with the relevant statutory definition, which is:

“sexually explicit conduct” means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person;

18 USC 2256(2)(a). Notably, the law contains another, different definition of sexually explicit conduct that applies where minors are involved - and that definition specifically employs the word graphic, defined to mean that "a viewer can observe any part of the genitals or pubic area of any depicted person ...during any part of the time that the sexually explicit conduct is being depicted." This is a broad definition of graphic, but presumably would exclude consisent obscuring of the genitals. It is significant, therefore, that the term graphic is not employed in the definition that pertains to material not involving minors. I think it is relatively plain, therefore, that the term sexually explicit conduct (as applied to material involving only adults) includes depictions that are partially blurred. Sexual intercourse or masturbation is still sexual intercourse or masturbation.

But what if we concentrate not on sexually explicit conduct but on the term depicts? Is this conduct still being depicted if naughty bits are obscured? Neither the law nor any regulation defines depicts. Dictionary definitions of the term are somewhat circular: decpict means represent means portray means make a picture of means depict. It is at least arguable that depict is ambiguous as to whether it includes an obscured representation. But there are two reasons why I think it should :
(1) In common usage, I think we would say that a film does depict something even part of the thing being depicted is obscured, whether by shadow or by digital effects, where it is in fact a film of that thing and identifiable as such.
(2) If depict were defined more narrowly, it would make the use of the term graphic elsewhere in the statute largely, perhaps entirely, superfluous. One traditional rule of thumb is that a statute should not be interpreted in such a way that part of it is superfluous. If Congress used narrower language in one part of the law and not another, it clearly meant for them to be interpreted differently, and reading depict narrowly would seem to negate this.

Of couse, the fact that 2257 is a criminal statute, and the fact that it places restrictions on speech, are two factors suggesting that it should be generally be construed narrowly. And since I think 2257 is generally a flawed, overbroad statute, I would be happy for it to be interpreted as narrowly as possible. But I think it is fairly likely that 2257 does cover films with the naughty bits obscured - certainly likely enough it would be unwise not to try to comply.

Is there an educational exception? A final argument is that The Price of Pleasure is exempt because it is an educational film. This is based on the language of federal regulations, which state:

Sell, distribute, redistribute, and re-release refer to commercial distribution ...but does not refer to noncommercial or educational distribution of such matter, including transfers conducted by bona fide lending libraries, museums, schools, or educational organizations.

28 CFR Part 75(d).

At first glance, this might seem to create a broad exception for educational materials. But it doesn't, for a couple of reasons. Let's assume that the distributor of this film is in fact a "bona fide...educational organization" - it is in fact distributed by the Media Education Foundation, apparently an educational non-profit. And let's also assume that educational distribution here can include charging a fee, i.e., selling, while still falling into the exception - the "noncommercial or" would seem to suggest as much. That means the film is not covered by 2257(f)(4), which criminalizes the sale or distribution of covered material without a 2257 compliance notice (stating where age verification records are stored, etc.) And, let's assume that the regulation itself is reasonable and valid, even though a federal appeals court has stated that under the statute itself, "The plain text and definitions of the terms used admit of no commercial limitation on who will be considered producers." (This from a panel of the Sixth Circuit, which went on to hold 2257 unconstitutional in at least some sitautions. The decision has been vacated for rehearing by the full Sixth Circuit. For more on the case, see this article.)

So far, so good. But there is no textual basis for this regulatory exception to apply to 2257(f)(1) through (3), which make it a crime to produce covered material that later gets sold without including compliance notices and actually creating and maintaining accurate records. In other words, the exception seems to mean that the distributor, MEF, is in the clear - but it doesn't seem to be of any help to the filmmakers, who would still violate the law by failing to create and maintain records, and to include compliance notices.

Summing up. The above analysis is by no means exhaustive - this is a blog, not a law review - but I think it is enough to suggest that the producers of a film like this have serious reason to think they are required to comply with 2257. In other words, it's well within the CYA margin. If requiring documentary filmmakers to document the ages of performers in their source material seems impractical, even absurd - and to maintain an address where government officials can drop by anytime during business hours for the next several years to check those records - well, that's because 2257 is a badly written law. It takes the Mom-and-applie-pie premise of keeping minors out of pornography and takes it to absurd and, in some cases, likely unconstitutional lengths.

Starting this week, viewing porn a crime in UK

I blogged in May about the UK's newly adopted law criminalizing the possession of so-called "extreme pornography." On Monday the law went into effect. You can now be sentenced to up to three years imprisonment in the United Kingdom for viewing, on your home computer, an ill-defined category of images that includes depictions of consensual adult sadomasochism. Small consolation: law enforcement say they aren't going to go out of their way to enforce the law.

As I noted before, the law relies heavily on a decade-old British court ruling that permitted consensual sadomasochism to be charged as assault. That ruling was upheld by the European Court of Human Rights, but it was based on sensational and distorted facts and has been unevenly applied in subsequent cases. The new law raises once again the scope and validity of that ruling, as well as serious concerns about free expression. No word yet about a legal challenge to the law, but it can be expected to eventually reach the British courts, and ultimately the European Court.

"Supreme Court lets Internet porn law die"

That's the headline the Los Angeles Times ran today, just as I was writing this post.

I've previously posted about ACLU v. Mukasey, in which the Third Circuit held that the Child Online Protection Act of 1998 (COPA) violates the First Amendment by prohibiting constitutionally protected "indecent" speech.

As the LAT notes, the Court had previously heard this case as Ashcroft v. ACLU (2004). Then, the Court upheld a preliminary injunction by a 5-4 vote, permitting the case to go forward and the lower courts to consider whether Internet filtering software provided an appropriate alternative to the strict provisions of COPA. Now that that Court has decided not to hear the case again on its ultimate merits, the Third Circuit's ruling of last year stands, and the law, which never took effect, appears to be dead.

Yes, COPA law was passed in 1998, and in ten years it never took effect because it was bouncing around the court system. One doesn't like to think of the money the Bush Administration spent defending it, even after the Supreme Court said it was likely to lose. Now the Court -- apparently satisfied by the extensive factfinding below that the law is a needless exercise in censorship -- has taken the unusual step of declining to review a lower court's decision that invalidates a federal law. What a great way to start the next four years: with a flat repudiation of yet another Bush Administration boondoggle.

UPDATE: Jack Balking has a post on "The End of the COPA Saga" at Balkinization. He notes that one issue suggested by, but not adjudicated in, the case is, "Who should bear the burden of filtering and blocking unwanted content in an digital environment and where should the filtering decisions be located?" Essentially because one size does not fit all, he concludes that "the Internet should place filtering decisions and responsibilities on the end user, not the publisher of the content."

Elena Kagan, Obama's SG, on pornography

Earlier this week President-Elect Obama announced he would nominate Harvard Law School Dean Elena Kagan to be Solicitor General. There is much to like about the choice. Kagan is an accomplished scholar and much-lauded dean who has often been discussed as a potential Supreme Court nominee. She is also a liberal, a feminist and a former clerk for Justice Thurgood Marshall, and would be the first female appointed to the position often referred to as "the tenth Justice" and "America's lawyer." (For non-lawyers, the SG supervises government involvement in appellate litigation and represents the government in the Supreme Court.)

(Disclaimer: Let me make very, very clear that the criticisms expressed in this post do not in any way reflect the view of any organization with which I am or have been affiliated.)

I think Kagan will make a fine SG, and deserves confirmation. Given the focus of this blog, however, I want to highlight published views of Kagan's with which I disagree, and which could impact her work as Solicitor General. Those views are contained in a now somewhat dated article (Kagan hasn't written much since becoming dean of HLS): Regulation of Hate Speech and Pornography After R.A.V, 60 University of Chicago Law Review 873 (1993). In it, Kagan advocates policies that could have could seriously limit and discourage sexual speech.

Kagan begins her article thusly:

This Essay on the regulation of hate speech and pornography addresses both practicalities and principles. I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.

Thus, Kagan equates pornography with hate speech, characterizing it as fundamentally harmful and undesirable speech.

She then suggests, in light of the Supreme Court's then-recent ruling in R.A.V. v City of St. Paul (striking down a ban on racially motivated cross-burning because it was "viewpoint-based"), what approaches to regulating pornography and hate speech are and are not likely to be successful, i.e. held constitutional. Her points about pornography are more or less as follows:

1. Regulations based on whether material endorses, approves, or actually causes harm to women will be struck down.
2. Communities should act to prosecute attempts to force people into pornography and "the sexual assaults and other violent acts so frequently committed against women in the making of pornography."
3. Using pimping/pandering/prostitution laws against pornographers, however, may be unconstitutional.
4. Regulating material on the basis that it depicts "sexual violence" has promise. However, a focus on "sexual violence" is subject to dispute as being viewpoint discrimination in disguise, since "violence" may be interpreted to mean simply that the material is "demeaning" to women.
5. If we can ban distribution of material depicting child abuse, perhaps we can also ban distribution of adult pornography the production of which involves unlawful conduct.
6. Feminists should embrace the doctrine of obscenity, despite its vagueness and its link to "traditional" notions of sexual morality, as a means of prosecuting pornographers.
7. Feminists should press courts to recognize a new First Amendment exception for pornography that would permit viewpoint-based regulations.

Kagan's legal analysis in this article is smart, nuanced, and overall has to be admired. But some of her proposals (4, 6, 7) are troubling, as they are clearly targeted at imposing broad bans on the general category of sexually explicit speech (though Kagan suggests the narrower, and probably unworkable, category of "materials that operate primarily ...as masturbatory devices"). Indeed, at several points (2, 5) Kagan makes clear that targeting actual crimes against women and the depiction of such crimes does not, in her view, go far enough. At the same time, the article takes for granted, as much anti-pornography literature does, that the adult entertainment industry is rife with coercion and violence (which, if it were true, would mean that local, state and federal law enforcement are essentially ignoring large-scale, organized violent crime). It's also notable that she rejects other approaches (1, 3) only with reluctance.

These are not views I would like to see espoused by America's lawyer. In particular her enthusiasm for the outmoded, unworkable and puritanical obscenity doctrine is troubling. But, even assuming Kagan's views have not changed since 1993, I doubt she will have opportunities to have much influence on these issues in her term as SG. At any event, I think Kagan will make an excellent SG despite my disagreement with her views on these issues.

EDIT: As I've previously noted here, AG nominee Eric Holder has also been a past advocate for obscenity enforcement. Hard to say, though, what these two nominations for top DOJ slots portend for the new administration's legal and law enforcement priorities in relation to obscenity.

Miscellaneous updates

Today's LA Times reports that porn king Larry Flynt is suing his nephews, apparently on a basis of alleged trademark violation, for using the Flynt name on what he argues are inferior adult videos that are tarnishing his good name. After all everyone knows the Flynt name stands for refinement and good taste. Says one of the defendants: ""The fact of the matter is my name is Flynt. If I can't use my name to do business, then what kind of society, what kind of world is that?" He may well have a point. I know little to nothing about IP law, but I suspect the case to turn on just how the name is used, and whether buyers would be confused about which Flynt products are which.

The NY Times reports on the government's bid for Supreme Court review in U.S. v. Stevens, the (so far successful) challenge to a federal ban on depictions on animal cruelty. The article notes that the law was designed to target fetishistic "crush videos" but has been used by the Justice Department to go after dogfight videos. It also notes that the Supreme Court is likely to take the case, since the lower court struck down a federal statute. The case is particularly interesting because it poses the question whether First Amendment exceptions for obscenity and child pornography can be expanded to reach other "harmful" and "low-value" speech.

And marriage equality group Freedom to Marry has issued an analysis of the Prop 8 vote that includes these findings:

• Party, ideology, religious attendance, age were the four major factors that drove voters' approval.
• Higher Black and Latino support was largely explained by higher religious attendance; when controlling for this factor the racial differences largely disappeared.
• Compared to the 2000 vote, support for marriage equality grew significantly across every demographic group (age, race, religion) except Republicans.
  

Finally, the en banc Ninth Circuit has allowed gay San Diego lesbians and agnostics to move forward with a claim that the city's lease of park land to the Boy Scots violates the California Constitution's ban on religious preferences. The court ruled that the plaintiff's had standing to sue based on their use of, and exclusion from certain functions on, the city-owned property, and sent the case to the state's high court.

More on "obscene" email convictions

I find the convictions based on cartoons and private, textual emails in U.S. v Whorley. quite disturbing, as do some other bloggers (even ones with whom I would disagree on a great many other things). But I don't blame the Fourth Circuit Court of Appeals. I blame the Supreme Court.
The result is appalling, but it is not that surprising, given three clear principles the Supreme Court has announced: First, words by themselves can support an obscenity conviction. At the appellate panel points out, the Supreme Court upheld a conviction based on words in a book on the same day it decided the landmark Miller obscenity case in 1973. Second, materials that cannot be defined as "child pornography" under the Court's precedents can nevertheless be defined as "obscenity." And third, the right to privacy that entitles individuals to possess obscene materials does not extend to sharing those materials with others over the Internet, which the Court treats as an "instrument of interstate commerce" regardless of the noncommercial context of its use.

Combine that with the inherent mushiness of the "obscenity" concept itself, and the dissenting opinion begins to look like more of a stretch than the majority. So it's not surprising that the dissent also calls that precedent into question, saying:

The Supreme Court’s attempts to define obscenity for over half a century, including its enunciation of differing standards for obscenity and child pornography, reveal one truth: a material’s obscenity, or lack thereof, ultimately depends on the subjective view of at least five individuals. Predicting how any person subjectively views material is impossible, an infallible truth that prompted Justice Stewart to pronounce a simple, yet honest test for identifying obscenity: "I know it when I see it . . . ."

Although I find it unlikely that the Supreme Court will reconsider any of these constitutional principles in the foreseeable future, Congress certainly can and should narrow the obscenity statute to a) exempt text, b) exempt drawings, c) exempt private, noncommcerial communications between individuals, or d) all of the above. Of course, that isn't a great deal more likely.

Fourth Circuit upholds obscenity conviction for private emails

You read that right. In the case of U.S. v. Whorley (PDF), the circuit panel held 2-1 that the obscenity statute applied to Mr. Whorley's private emails to another adult describing fantasies of sexual acts with children, and that this application of the law was constitutional. It did not matter, the courts said, the possessing obscene matter is constitutionally protected; that right does not extend to sharing it through private emails. The Internet is an instrument of commerce, and communications using it are not genuinely private.

It also did not matter, the court said, that the Supreme Court has held the treatment of prose and cartoons as "child pornography" unconstitutional; the same material could still be criminalized as obscenity.

Mr. Whorley is not a sympathetic guy. He has been twice convicted of receiving actual child pornography. But he has also been convicted for the textual descriptions of "obscene" matters in his private emails, as well as receiving "obscene" anime cartoons of minors engaged in sexual behavior. (He's also not a clever guy: he got caught doing it at his job at the Virginia Employment Commission.)

One of the two judges who made this ruling said he "share[d] some disquiet" regarding the email convictions, but that they were proper under governing law. The panel's third judge wrote a long dissent objecting to the email and cartoon convictions. The dissenting judge reasoned that (1) the text conviction violate the First Amendment, and (2) the cartoons were simply not covered by the relevant statute. The portion regarding the emails is worth excerpting at length:

The emails did not include any visual depictions or attachments containing child pornography of any type, and the Government does not allege that Whorley used the e-mails to convince or lure a child into any sexual activity. ....The economic and social justifications for regulating e-mail fantasies — even those involving activities that would be criminal if the fantasies were acted out — are minimal. Indeed, the harm, if any, involved in Whorley’s conduct is not readily discernible because the e-mails were written and exchanged for the sole "enjoyment" of Whorley and his counterpart. Unlike the facts in Ferber, this exchange of information did not have any economic consequences on the child pornography trade and real children were not harmed (or even discussed) during the "production" of these e-mails.

The majority resolves this issue by citing the well-known proposition that words can be obscene. ...However, simply because words can be obscene is not sufficient, on its own, to criminalize pure speech. Incest and sexual relationships between children and adults are distasteful subjects to most individuals, yet writers routinely publish such material....The expert provided the district court with numerous examples of recognized writings involving child sex with adults and/or incest including: Sigmund Freud’s writings on incest and fantasies, Alice Walker’s The Color Purple, and William Faulkner’s Absalom, Absalom!...

One need not delve into the rare archives of the Library of Congress to find works describing an adult’s sexual fantasies about children. Some of these writings, Lolita for example, are seated at the head table of great literary works of all time. ... The subject of adults fantasizing about having sex with minors, or alternatively, adults actually consummating relationships with children, is not limited to popular literature and academic discourse. A central theme of the Academy Award winner American Beauty is a forty-two year old man’s sexual fantasies about his teenage daughter’s high school classmate....

From my perspective, the iconic books and movies above render unsustainable the claim that writings describing sexual acts between children and adults, generated by fantasy, have no demonstrated socially redeeming artistic value. If the writers of the aforementioned books and movie scripts e-mailed the sections of their work that described the sexual relationship between the minor and the adult to a willing recipient, presumably both the writer and the recipient could have been subject to prosecution for sending or receiving obscene material under § 1462, an untoward result....

Incursions on our citizenry’s right to be free from governmental regulation of speech are viewed with skepticism and scrutiny....Whorley’s e-mails are pure speech at the very heart of the First Amendment....Frankly, I am hard pressed to find a permissible governmental interest that is served in suppressing Whorley’s emails as such an action would not aid in "protect[ing] the victims of child pornography" or the "destr[uction] [of] a market for the exploitative use of children."The most obvious interest the government might have in suppressing such speech — that such fantasies may "whet[ ] the appetites of pedophiles and encourage[ ] them to engage in illegal conduct," has been soundly rejected by the Supreme Court.

Today, under the guise of suppressing obscenity — whatever meaning that term may encompass — we have provided the government with the power to roll back our previously inviolable right to use our imaginations to create fantasies. It is precisely this unencumbered ability to fantasize that has allowed this nation to reap the benefits of great literary insight and scientific invention. The Constitution’s inviolable promise to us is its guarantee to defend thought, imagination and fantasy from unlawful governmental interference regardless of whether such thoughts, imaginings, or fantasies are popular with the masses. It is in these moments that our grip on the rule of law and our fidelity to constitutional values is tested.

The dissenting judge also had some things to say about the Supreme Court's obscenity doctrine in general, which deserve their own post.

In my lifetime, prosecutions for obscenity based purely on text are rare. The only other case I know of regarded much media comment and resulted in a guilty plea.

H/t to How Appealing and the Volokh Conspiracy.

Australian court convicts for virtual child porn

An appellate judge in New South Wales, Australia has apparently ruled that it was proper to charge a man with possessing child pornography on the basis of cartoon drawings of characters from The Simpsons engaged in sexual acts. You can read excerpts from the decision at the Media Law Prof Blog. It is densely written opinion, apparently based entirely on statutory interpretation.

Australia's constitution does not contain an express freedom of speech, and the courts there have apparently recognize a much narrower right to political speech than is enforce in the United States. Here in the United States, the Supreme Court has previously held unconstitutional the application of child pornography laws to "virtual" depictions of minors.

The NSW judge relied in part on a rationale the U.S. high court expressly rejected: that cartoon depictions of children help perpetuate a market for actual child pornograhy. He also suggested that this holding was necessary to prevent the harmful use of drawings, etc. to depict actual, individual minors engaged in sex.

The judge held that whether a drawing or other representation of a minor falls within the law depends on the facts of the case, and in particular the degree to which the depiction is clearly meant to represent a human child or teenager:

Merely to give human characteristics to, say, a rabbit, a duck or a flower, to use some other familiar images, would not suffice if it were fair to say that the subject of the depiction remained a rabbit, a duck or a flower. A stick figure could not, I think, depict a person.... No bright line of inclusion or exclusion can be sensibly described. ...Accordingly, if it were reasonably possible that the depiction is not that of a person, the offence is not proved. It follows that a fictional cartoon character, even one which departs from recognizable human forms in some significant respects [as the Simpsons characters do], may nevertheless be the depiction of a person within the meaning of the Act.

Bestselling fantasy author Neil Gaiman says the ruling is "nonsensical in every way that it could possibly be nonsensical," and has some choice words to say about the harmful implications of such a view of the law - including that Australians could now conceivably be locked up for owning his longtime friend Alan Moore & Melinda Gebbie's acclaimed book Lost Girls. Gaiman suggests this is a good occasion to contribute to the Comic Book Legal Defense Fund.

In Minnesota, toilet toe-tapping trashed

Leonard Link discusses a ruling by the Minnesota Court of Appeals, rejected Sen. Larry Craig's bid to overturn his conviction for disorderly conduct in the form of lurid toe-tapping. As an initial matter, the court held that Craig could not take back his guilty plea. Moreover, the court rejected free speech arguments by Craig and the ACLU. The court held that the disorderly conduct law was not overbroad on its face, and that "even if appellant’s foot-tapping and the movement of his foot towards the undercover officer’s stall are considered ‘speech,’ they would be intrusive speech directed at a captive audience, and the government may prohibit them." Craig intends to appeal to the state's high court.

More on N.H. pornograhy/prostitution case

For more on the ruling I discussed yesterday, see coverage at AVN. For more on the facts of the case, see coverage at the Concord Monitor. Something I left out before: our bailiff and would-be-pornography was also convicted on a second prostitution charge involving another couple, and in that case he offered to pay them only to watch, not to videotape. He challenged that conviction on the basis that the prostitution law was overbroad on its face because it could apply to protected speech, but the N.H. court held that the law was facially valid, and its application to protected speech could be challenged in a case that actually implicated that concern.

This week's decision overturning the second conviction was that as-applied challenge. So our defendant still stands convicted in the first case, because he didn't plan to film the action. Notably, the county prosecutor may be considering charging him again in the other case, and attempting to prove that his purpose was in fact personal sexual gratification, not making a film -- in which case it would still be constitutional.

I think the distinction drawn here between paying for others to have sex for the purpose of film and paying for others to have sex for the purpose of getting your personal jollies is somewhat problematic, because the two are far from mutually exclusive. It gets more complicated when you add in the scenario of the director-as-performer. The moral of the story, perhaps, is this: don't try to use "making pornography" as a mere cover for paid personal sexual gratification; you may still fall afoul of the law.

N.H. Court: Pornography ≠ Prostitution

New Hampshire's Supreme Court held this week (PDF) that producers of pornography cannot be prosecuted for prostitution, because paying individuals for the right to videotape their sexual acts is constitutionally protected to the extent that the payor's purpose is to videotape the action rather than to get laid.

As Marc Randazza has discussed in some detail at the Legal Satyricon, few courts have previously addressed this issue. The leading case is People v. Freeman, in which California's Supreme Court reached the same conclusion. In an older case, a New York trial court reached the opposite conclusion.

Here, the defendant offered a couple he met money to tape them having sex. To make a long story short, under the provision of the prostitution law he was charged under, it was not necessary to prove that he paid the couple for the purpose of personal sexual gratification; any payment for sexual conduct would do. The court said that this provision was overbroad as applied to this case, because such application would bar the commercial production of constitutionally protected pornography. The court noted that it would have been fine to charge him under a different provision, under which the jury would have to conclude that the payment was made for purposes of sexual gratification, rather than for the purpose of making a film.

This is essentially the rationale of Freeman: (1) Pornography is different because the payment is made for purposes of making a film, not purposes of personal gratification, and (2) If the two were treated alike, a broad category of sexually explicit films could not be produced. The court rejected any distinction between making and selling pornography. If you have a right to produce porn, you must have a right to pay people to perform in it.

Eugene Volokh @ the Volokh Conspiracy is suspicious of this distinction, but I think it makes sense: pornography and prostitution are very different transactions, which is why many porn performers wouldn't engage in prostitution regardless of the law. A prostitution rap makes even less sense in this particular case than in the typical case of professional producers and performers, because the defendant here was soliciting couples who, presumably, were going to have consensual sex with each other regardless.

So hurrah for the First Amendment and pornography production in New Hampshire. On second thought, who makes porn in New Hampshire? Judging from this case, courthouse security guards soliciting random couples they meet at work. Let's hope the court's decision leads to a higher class of New Hampshire-based pornography...

Prison censorship (Kansas edition)

The Kansas Court of Appeals recently rejected a prisoner's challenge to the state's refusal to allow inmates access to sexually explicit materials. Washington v. Werholtz. 2008 WL 4998689. This is hardly big news - prisons are uniformly very restrictive of such material, and courts have upheld such restrictions - but the case provides an interesting illustration of how these policies work and are justified.

The Kansas regulation prohibits all "sexually explicit" material, define thus:

"The material shall be considered sexually explicit if the purpose of the material is sexual arousal or gratification and the material meets either of the following conditions: ...
(2) Contains any display, actual or simulated, or description of any of the following: (A) Sexual intercourse or sodomy...(B) masturbation..."

So, not only visual depictions of nudity or sex are banned, but also any prose that describes sex if its purpose is deemed to be titillating. Several books that Mr. Washington ordered were censored as sexually explicit: Slave Girl by Claire Thompson, a smutty novel about consensual dominance and submission within marriage; Yearbook Lingerie 2004: Objects of Desire by Elodie Pivateau, apparently a serious fashion photo book; The Lapdancer by Juliana Beasley, a serious if apparently explicit book of photojournalism by an art student-cum-stripper; How to Make Love Like a Porn Star by Jenna Jameson, the superstar's lurid and "cautionary" memoir; The Sexual Life of Catherine M. by Catherine Millet, the noted French art critic's shockingly graphic and introspective memoir; and The Bride Stripped Bare by Nikki Gemelli, an acclaimed and bestselling British novel, originally published anonymously.

Of these, my guess is that only the first can fairly be said to be intended primarily for sexual gratification; the rest are more or less "serious" literary or nonfiction books, though no doubt possessed of a substantial titillation factor for men in prison. It appears the state's own policy wasn't being followed, as I was able to make these calls with some confidence with a quick Amazon check. The folks in the prison mail room could no doubt make similar judgments just as quickly. Still, the court rejected arguments that prison officials should be ordered to give more careful consideration to possible "explicitly" books, saying this would be too burdensome.

The court's justifications for the policy are twofold: (1) any sexually explicit material in the prison is likely to fall into the hands of sex offenders, and it's dangerous for sex offenders to read it, and (2) sexually explicit material encourages and becomes a tool of sexual harassment of corrections officers. Now, the standard here is "legitimate penological justification" - it's a low bar, scarcely more than rational-basis review. But the court does seem to take it as self-evident that sexual material of all kinds must be kept out of the hands of sex offenders - logic that I've previously opined is deeply suspect. The sexual-harassment rationale seems less flimsy, at least as applied to photographic or illustrated material, but I'm not sure the argument is as strong that explicit prose will facilitate harassment of prison staff.

Does an anti-porn documentary violate federal law?

A recent documentary on pornography has prompted much discussion on blogs dealing with feminism, sexuality, sex work, pornography and related topics. The film is called The Price of Pleasure, and it intercuts clips from recent porn releases with clips from interviews with industry insiders and critics. The film is essentially a pointed argument that pornography is harmful to women and to intimate relationships. Among the many criticisms of the film is that its producers and distributor failed to comply with the detailed federal record-keeping requirements to which pornographers are subject. The law is 18 US Code Section 2257, and it is intended to ensure that only adults appear in pornography. It states that:

Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which—

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and

(2) is produced in whole or in part with 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;

shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

Covered producers are also required to place a notice of compliance on all covered materials. The penalty for each violation is up to five years. Adult film producer Ernest Greene argues that the film is covered by, and violated, 2257 here and here. Adult Video News editor Mark Kernes makes the same argument here. Similar criticisms have been levelled at an explicit slideshow exhibited by anti-pornography at lecture appearances around the country. This material has been defended on the ground that it falls under a "fair use" exception to 2257. (They seem to be confusing copyright law with 2257, but the argument does go deeper than this misnomer.) And some critics of this anti-pornography agitprop contend that these legal arguments are weak, and attention should be focused on rebutting its arguments.

I haven't yet seen a serious, detailed analysis of 2257 and whether it applies to material like this, or for that matter anything written by a lawyer. I'll attempt that in a forthcoming post.