Benjamin, Aaronson, Edinger & Patanzo, P.A.

Section 2257

For those of you who produce adult material, the record keeping requirements of 18 U.S.C. Section 2257, has always been a thorn in your sides.  Not only are the requirements of Sections 2257 ponderous, but the language of the Federal Statute is so imprecise that many of you have not understood its requirements and we lawyers have not been able to give precise answers as to all of what the requirements mean.  Yet, all of you and all of us have done our best to interpret Section 2257 and to comply with its dictates.

In essence, Section 2257 required producers and secondary producers of adult material to keep on file in several different manners, proof of age of the actors and actresses that appeared in adult movies, adult pictures or any other type of adult media.  The dictates of Section 2257 have come under court challenge several times and each time a Federal District Court has ruled that a portion or portions of Section 2257 violated the First Amendment and therefore was unconstitutional.

In late October, the Sixth Circuit Court of Appeals affirmed a District Court ruling declaring Section 2257 to be overbroad and therefore unconstitutional.  The Federal Circuit Court determined that Section 2257 was so unconstitutional and had so many affirmaties, that they could not strike various portions of it and allow the remainder to stand as constitutional.

The ruling by the Sixth Circuit Court of Appeals dealt with a case involving swinger magazines and swingers.  The Court noted that if the purpose of Section 2257 was to make sure that there were no underage actors and actresses in adult material, that Section 2257 was overbroad in that it hampered the First Amendment rights of speech of those who are obviously over the age of eighteen.  The court further found, that based upon the wording in Section 2257, middle-age swingers who could only dream of ever looking eighteen years old again, would be required to keep records in their own homes, of pictures or videos of themselves engaging in sexual activities with their spouses.  The Court stated that there was no legal justification for that infringement.  The Court further went on to point out that there would be no legal justification, as to why these people’s anonymity should be taken away since clearly they were over the age of eighteen.

There was a lot more to this ruling, however, the essence of the ruling is once again Section 2257 has been declared to be unconstitutional and nobody knows when and if it will be repaired and be made constitutional.  However, on a practical note, we advise those of you who produce adult material or secondary producers, to act in accord as if Section 2257 was still constitutional.  Although it was held unconstitutional by the Sixth Circuit, that is still not the law of the land and in fact is subject to reversal by the United States Supreme Court should it be taken up to that level and the Court agreed to hear the matter.

On a totally unrelated matter, last month we had the opportunity to view one of the Democratic debates.   The hot topic was whether or not torture should be used at any time in order to get information from a terrorist or terrorist suspect.  If it was a Republican debate, not only would the answer have been yes to torture, but the candidates actually would have been foaming at the mouth as to which ones could have devised the more heinous form of torture so that he could have bragged that he is the toughest on the war on terrorism.  However, Democrats find themselves in a more awkward position on the issue as their constituents factor in morality and right and wrong when forming answers to this question.

It is easy to say that torture should never be allowed.  Certainly, that is what the Geneva Convention states and we have signed on the dotted line to that pact.  More importantly, almost all experts agree that torture only leads to unreliable information as the person who is enduring the pain will say anything to have it stop.  Reports are that is exactly how we got into Iraq.  We had captured a suspected terrorist who would not give us any information.  We shipped him off to Egypt where he was kept for seventeen hours in a 22 inch wide by 22 inch high box.  When he was released from the box he was asked by the Egyptian interrogators if he knew anything about various terrorists plots.  Upon again saying that he did not, they proceeded to beat him unmercifully for fifteen minutes until he said what they wanted to hear.  Unfortunately, what they wanted to hear was not the truth and that infamous tie between Sadam Hussein and Al Qaida was established.  Now, close to 4000 United States deaths later, and hundred of thousands of Iraqis lives being taken, the proof that torture does not work is in the pudding.

Yet, what leader of this country could refuse to use torture depending on the circumstances.  For example, what would the proper course of action be if we were to learn that there was a nuclear bomb set to go off in three hours in one of our major cities?  We had in custody someone who we believed had knowledge of where the location of the bomb was or how to have it disarmed.  Certainly, torture may not work, but the other interrogation methods that take long periods of time to whittle down the will of the captive would be fruitless in this situation.  With the clock ticking, does the leader of the free world have the moral imperative in order to save hundreds of thousands, if not millions of lives to use torture with the hope that the excruciating pain will cause the suspect to divulge the critical information as the clock ticks down.

What would we think of our leader who did not use torture as those final minutes of the clock ticked down?  What would we think of our leader who decided on preserving the human rights of that captive who is willing to allow millions of our citizens to die?  There is no easy answer to the question on torture.  In fact, there is only wrong and wrong.  It certainly would be wrong to allow millions to die and it certainly is wrong to torture.   Sometimes black and white answers don’t work in a world that is often times gray.

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