CANOGA PARK, Calif. - The U.S. Department of Justice today issued proposed regulations for Section 2257A, an addition to the 2257 federal record-keeping law which applies to those who produce images of simulated sexual activity.

The proposed regulations appear at pages 32262 through 32273 of volume 73 of the Federal Register and on the Free Speech Coalition’s website. The public comment period for these proposed regulations will end on August 5, 2008.

Section 2257A was enacted by Congress and signed into law by President Bush in July 2006 as part of the Adam Walsh Act. The proposed record-keeping requirements provoked a strong reaction from Hollywood studios concerned that the regulations could affect mainstream movies depicting sexual conduct.

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by Alan R. Levy, April 28, 2008
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Section 2257 of title 18 of the U.S. Code requires that “producers” of photographs and films of “actual sexually explicit conduct” create and maintain records documenting the age of the performers depicted in those performances. The statute’s purpose is to ensure that the performers are not minors. This recordkeeping statute has generally been limited to the adult film industry, although recently the statute’s impact has crept into the realm of mainstream film and television. For over two decades, the statute has withstood numerous constitutional challenges by the adult film industry and civil libertarian organizations. On October 23, 2007, however, the U.S. Court of Appeals for the Sixth Circuit held that § 2257 was overbroad on its face and therefore unconstitutional.

Although the Sixth Circuit has since vacated the Connection III decision to rehear the case en banc, this decision marks the first time that a federal appeals court has struck down the recordkeeping statute on constitutional grounds. Ironically, the victorious plaintiff was not the adult film industry or a civil liberties organization but rather a non-commercial “swingers” publication in which married couples published explicit photographs of themselves to seek out other married couples for sexual relationships. While the court protected the constitutional rights of swingers, this decision will also impact the speech rights of both the adult film industry and the mainstream entertainment industry. Even though the full Sixth Circuit decision will replace that of the appellate panel, the reasoning in the earlier decision will lay out the framework for the arguments in this case and future challenges to the statute.

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