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