Category Archives: free speech

Are the Adult Industry Recordkeeping Requirements relating to Live Internet Chat Rooms Overly Broad?

The Child Protection and Obscenity Enforcement Act of 1988 (18 U.S.C. § 2257) (“Act”) has presented a variety of legal challenges for the courts across the nation.  Recently, a federal judge in Denver upheld the Act’s recordkeeping requirements for the adult industry but carved out exceptions for its application to live Internet chat rooms. Free Speech Coalition v. Gonzales, 406 F. Supp. 2d 1196 (D. Colo., 2005). This exception is based on a novel way of interpreting the constitutionality of the Act. It is a particularly intriguing development in the Act’s application to the adult entertainment industry.

The relevant provisions of the Act require producers of sexually explicit material to obtain proof of age for every performer and retain those records for inspection by the government. Although, the Acts requirements do not apply to persons involved in the “mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted”, they do include creation of a “computer generated image, digital image or picture.”  18 U.S.C. § 2257(h)(3).  The provisions of the Act also require the producers to keep a copy of the depiction. For depictions published on the Internet, the producers are required to keep a copy of any URL or other identifying reference associated with the depiction.  28 C.F.R. § 75.2(a)(1).

In that case, the Plaintiffs’, all participants in adult entertainment industry, sued the Attorney General alleging that recordkeeping requirements of Act and associated regulations violated their First Amendment and privacy rights.

The Plaintiffs’ alleged that the requirement to keep a copy of each depiction with regard to live Internet chat rooms is unduly burdensome because it will result in substantial storage costs for the producers. Live Internet chat rooms usually involve a performer who is engaged in a dialogue with the customer either over the phone or via an Internet messenger. A video image depicting the sexually explicit conduct of the performer is simultaneously transmitted to the customer. An adult entertainment producer may operate numerous such chat rooms continuously throughout the year.

Plaintiffs alleged that maintaining “a copy of the depiction” for such chat rooms would involve tremendous costs and storage space. The Court noted that in Internet chat rooms, the performer is also engaged in conduct or actions that are not sexually explicit in nature. While acknowledging the Government’s interest is in combating child pornography and not banning any expression, the Court concluded that forcing the content producer to maintain copies of massive amounts of mixed explicit and non-explicit content would be too burdensome. The Court stated that the “regulation is not narrowly tailored with regard to chat rooms since it may well burden substantially more speech than is necessary to further the government’s legitimate interest.” Id. at 1209. Therefore, the Court narrowed the requirement to solely mandate that the adult producers to keep records of the performer’s identification, and not the actual depiction of the content itself.


© 2011 Nissenbaum Law Group, LLC

Do the recordkeeping, labeling and inspection requirements of the Child Protection and Obscenity Enforcement Act violate the First and Fourth Amendment rights?

In July 2010, almost 22 years after the enactment of the Child Protection and Obscenity Enforcement Act, 18 U.S.C. Section 2257, (“Act”) the United States District Court for the Easter District of Pennsylvania was once again asked to address the constitutionality of certain provisions of the Act. Free Speech Coalition, Inc., et al. v. Hon. Eric Holder, 729 F.Supp.2d 691 (E. D. Pa., 2010).

In this case, Plaintiffs’, a group of producers and distributors of sexually explicit materials brought a lawsuit against the Government alleging that the Child Protection and Obscenity Enforcement Act’s recordkeeping, labeling, and inspection requirements violated their First and Fourth Amendment rights. Plaintiffs’ specifically asserted that the age verification requirements of § 2257 and § 2257A went too far and violated their constitutional rights.

§2257 of the Act provides that “producers of certain visual depictions of actual sexually explicit conduct ‘shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.’” 18 U.S.C. §2257(a). Thus, the producers are required to verify the performer’s name and date of birth and also maintain a record of such information. § 2257A of the Act applies the same recordkeeping, inspection and labeling requirements to depictions of simulated sexually explicit conduct. 18 U.S.C. § 2257A. Plaintiffs’ contend that § 2257 and § 2257A are content-based regulations, and they violate their First Amendment rights.

In arriving at its decision, the Court focused on the distinction between content-based and content-neutral statutes. It also considered the rulings of two Circuit courts and a District Court on the same issue with regard to section §2257 of the Act. The Court held that the burden placed by the age-verification requirement on the constitutionally protected expression is proper. It is in furtherance of a purpose (protecting children from being sexually exploited) which is completely unrelated to the underlying message of the protected expression. Moreover, these requirements are narrowly tailored means to combat child pornography and do not suppress constitutionally protected speech.  Thus, the Court followed its precedent in upholding the recordkeeping requirements of the Act. See American Library Ass’n v. Reno, 33 F.3d 78 (D.C. Cir. 1994); Connection Distrib. Co. v. Holder, 557 F.3d 321 (6th Cir. 2009); Free Speech Coalition v. Gonzales, 406 F. Supp. 2d 1196 (D. Colo., 2005).

The Plaintiffs’ also alleged that the inspection requirement of the Act violated their Fourth Amendment right to privacy because it constituted warrantless search and seizure. The Court disagreed and held that the Plaintiffs’ did not have any reasonable expectation of privacy in the records they were required to maintain. The Court held that the inspection requirement also “amounts to a valid warrantless administrative search.” Id at 698.


© 2011 Nissenbaum Law Group, LLC