Category Archives: Sexually Explicit Material

Does the 5th Amendment Protect Producers of Sexually Explicit Material From Self-Incrimination?

In in re: Grand Jury Subpoena Duces, 368 F. Supp. 2d 846 (W.D. Tenn. 2005), John Doe 1 & 2 (collectively, “Petitioners”) were served with a subpoena to testify before a Federal Grand Jury. Pursuant to 18 U.S.C. §2257, the subpoena required the Petitioners to bring with them any and all records pertaining to models used by their company Petitioners attempted to quash the subpoena by arguing that it violated their 5th Amendment right to be free from self-incrimination. The United States asserted that the 5th Amendment did not protect the Petitioners because the documents requested were records required to be kept pursuant to §2257.

§2257(a) states:

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.

In Shapiro v. United States, the Supreme Court held that the 5th Amendment privilege against self-incrimination does not apply to records that are required to be kept pursuant to a valid regulatory scheme. Shapiro v. United States, 335 U.S. 1, 17-18, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). However, the “required records” exception is construed narrowly in preservation of the 5th Amendment’s constitutional purpose. United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944). The government’s request for information will be granted under the exception if it meets the following three requirements:

(1)   the purpose of the government’s inquiry must be essentially regulatory, rather than criminal;

(2)   the records must contain the type of information that the regulated party would ordinarily keep; and

 (3)   the records must have assumed public aspect which render them at least analogous to public documents.

(citing Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968)).

The Supreme Court explained that §2257 targets a specific group of people. Specifically, it targets producers of media depicting sexually explicit conduct that utilizes performers who either are, or appear to be, minors. Additionally, the Court noted that although the record keeping requirement applies to “all producers of media depicting sexually explicit conduct,” it is not necessarily regulatory. The requirement does not foreclose the possibility that it targets a select group inherently suspect of criminal activities. Further, the production and distribution of child pornography is inherently illegal.

The Supreme Court concluded that §2257 is not regulatory in nature. This is because it targets a highly selective group that is inherently suspect of criminal activities, and is a part of a criminal enforcement scheme that seeks eradication of child pornography. Accordingly, the Supreme Court granted Petitioners’ motion to quash the subpoenas because the government did not meet the first prong of the required records exception, to wit: that the purpose of the government’s inquiry must be essentially regulatory, rather than criminal. 

What Is The “2257 Distributor Obligation”?

Though 18 USC §2257 (“2257”) imposes well-known requirements regarding record-keeping and labeling on producers of sexually explicit material, it also places certain rules on those who are not directly involved in the production of the content. 18 U.S.C. §2257. Though these individuals play less of a role in the production of the material, secondary producers and non-producers can sometimes find themselves facing penalties just as serious as those faced by producers found in violation of the statute. 

One example of such a requirement is found in section (f) of 2257, which imposes obligations on distributors of adult content. This “2257 distributor obligation” applies to sellers and distributors of the content, even though they might not be held to the same requirements as a primary producer of such material.

Specifically, section (f) states that it shall be unlawful:

“(4) for any person knowingly to sell or otherwise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produce in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, which –

(a)    contains one or more visual depictions made after the effective date of this subsection of actual sexually explicit conduct; and

(b)   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;

which does not have affixed thereto…a statement describing where the records required by this section may be located, but such person shall have no duty to determine the accuracy of the contents of the statement or the records required to be kept.”

18 U.S.C. §2257(f)(4).

This language extends a responsibility to certain individuals who may not be primary producers who are subject to the more well-known record keeping requirements. An individual who uploads the content to a website server (thus becoming a secondary producer) can fall under the purview of section (f) if the content being uploaded is subject to 2257 regulations.  This extends to any individual who knowingly offers, sells or transfers the materials in some way.

The Department of Justice has demonstrated that a 2257 violation is a fully chargeable offense, so the lack of attention to section (f) does not make the crime any less serious in the eyes of the law. It is important for those handling materials subject to the 2257 regulations to realize the statute requires all distributors – even those on a secondary level – to display a proper compliance statement on the material that indicates where the required 2257 records are kept.

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