A federal appeals court judge just made it a lot easier for the pornography industry to abuse and exploit children for profit.
The Aug. 3 legal decision, which has received far less media attention than it deserves, represents the most significant blow to opponents of child porn in decades. We believe it could lead to a sharp increase in the number of underage performers being exploited due to the removal of legal oversight and penalties for uploading or distributing images that feature minors.
We’ve been studying the business of porn for years, as scholars, advocates and experts in legal battles. In fact, we provided expert testimony in 2013 in a related court case and endured two hours of grilling from the judge and porn industry lawyers.
The industry is now celebrating its landmark victory. To us, it is a sign of porn’s growing power to fight legal battles and free itself from regulatory constraints as its business model rapidly changes in the internet age.
The case revolves around U.S. Code Title 18 Section 2257, which requires porn producers to keep stringent records on the ages of performers and allows federal agents to inspect them at any time.
The penalties for failing to do so are harsh, including large fines and up to five years imprisonment for a first offense. In the most famous case, the company that produced the “Girls Gone Wild” video series was fined US$2.1 million for 2257 violations. Although there have been few prosecutions, the potential penalties provide an important deterrent.
Over time, the Justice Department expanded the definition of producers subject to the regulations to include “secondary producers,” which includes internet distribution, and set out detailed guidelines for how the records should be organized and indexed.
Judge Michael Baylson of the U.S. 3rd Circuit of Appeals ruled that most of 2257’s record keeping requirements were unconstitutional on First and Fourth Amendment grounds. The ruling allows primary producers to fulfill age verification obligations by using a form developed by the Free Speech Coalition, the industry association that brought the lawsuit against 2257. In the most far-reaching and troublesome change, the decision completely exempts major distributors (termed secondary producers), from any record-keeping requirements.
While the production and distribution of child pornography remain illegal, the law is toothless without record keeping. The requirement provides the only way to verify and track performers’ ages and serves as a major incentive for businesses across the complex supply chain to monitor content.
A 30-year war
The regulations came in response to the public outcry that ensued when Penthouse magazine featured a 15-year-old Traci Lords in its September 1984 edition.
Research and evidence demonstrate clearly that children who are exploited in the making of porn suffer from a range of devastating and long-lasting effects.
Four years later, Congress enacted the Child Protection and Obscenity Enforcement Act, which included Section 2257 and criminalized a wide range of transactions involving the use of minors in pornography, including the electronic transmission of visual images.
The rapid growth of pornography on the internet led lawmakers to pass the Child Pornography Prevention Act in 1996, which extended the provisions to include any digital image that “is, or appears to be, of a minor engaging in sexually explicit conduct.”
The porn industry has fought these regulations ever since they were first passed in 1988 and founded the Free Speech Coalition just three years later to coordinate the industry’s lobbying and legal strategy and to share expenses related to it. Prior to this month’s decision, its biggest victory was overturning the 1996 restrictions in a 2002 Supreme Court decision that permitted images of young-looking girls, as long as the performers were actually over 18.
The decision made the reporting requirements more vital that ever, as it was otherwise impossible to know the real age of performers who were made to appear very young. Nonetheless, the coalition filed many lawsuits over the years challenging 2257, claiming that the regulations placed an undue burden on pornographers’ free speech and violated Fourth Amendment protections against warrantless search and seizure.
While different courts have struck down various parts of 2257 and then upheld them on appeal, overall the regulations have largely remained intact – until now.
2257’s death knell?
In the 2013 case in which we served as expert witnesses, the Free Speech Coalition challenged 2257 by claiming that there was hardly any porn featuring young-looking females.
Constitutional cases often turn on whether a compelling public interest – such as protecting children from exploitation – is greater than any resulting regulatory burdens that might infringe on another group’s rights – in this case, keeping records.
Our research demonstrated that, contrary to the industry’s claims, “teen porn” and related genres featuring young-looking females have grown to be the largest single segment, representing about one-third of all internet porn in terms of both search-term frequency and proportion of websites.
The same Judge Baylson cited the strength of our research in his 2013 ruling to uphold the 2257 regulations. But in his decision this August, for reasons unknown to us, he appears to have changed his mind and sided with the industry over the protection of children. Indeed, the decision only considered injuries to porn businesses, not to children.
The Department of Justice might yet appeal, but most legal observers we have consulted with think that 2257 is in serious jeopardy.
Why the industry fights
The Free Speech Coalition claims that it has invested more than $1 million since 2005 to fight 2257 and is now asking for donations to cover outstanding legal debts.
Why is overturning 2257 so important to the porn industry?
The key reason, in our view, is that the regulations strike at the heart of the business model of the major corporate distributors of porn and particularly of MindGeek, which has become the largest multinational porn conglomerate in the world.
MindGeek and other distributors source porn content from a large number of fragmented low-cost producers, who are increasingly located around the globe. The growth of the market segment featuring young-looking females represented a potential legal threat. And distributors of porn – like other internet companies and social media platforms – want to avoid responsibility for content that could expose them to substantial legal and financial liabilities.
Although software solutions are available that could tag every picture and video with data on the performers, the complexity of distribution networks and the vast amount of product uploaded by third parties likely makes compliance with 2257 somewhat cumbersome and costly.
The porn industry has emerged as a powerful force that is trying to shape the regulatory environment to support its shifting business model. Compliance with age verification laws might cost the industry some money, but we believe this is a small price to pay to protect children from the predatory porn industry.
Gail Dines, Professor Emerita of Sociology and Women's Studies, CEO of Culture Reframed, Wheelock College and David L Levy, Professor of Management, Director of the Center for Sustainable Enterprise and Regional Competitiveness, University of Massachusetts Boston