In a time when we’re on high alert against terrorism and in the midst of war, a proposal by the Department of Justice could cause premier playmate Anna Nicole Smith to roll over in her grave.
In an effort to crack down on child pornography and keep minors out of the X-rated business, the DOJ wants an official registry of every porn star in America. The new rules, under the Adam Walsh Child Safety and Protection Act, would force every adult film star to cough up their professional names, maiden names, aliases, nicknames, age and picture for inspection by the department’s Child Exploitation and Obscenity Section (CEOS).
The mission of the CEOS: protect the welfare of America’s children and communities by enforcing federal criminal statutes relating to the exploitation of children and obscenity. The goal is noble and one I agree with but I am a little confused — does the Justice Department really have this much time on their hands or, after all, the Washington sex scandals of late, is this just a way for officials to check out porn Web sites without getting busted and landing on primetime? No, I don’t really mean that — but aren’t we focusing on the wrong target? The real perverts to monitor are the ones making the kiddie porn. If we had unlimited resources, we could compile hundreds of lists, but is this catalogue of aliases really a top priority for the DOJ? And if so, maybe we need to re-think these priorities.
What’s more, this sounds like a violation of our constitutional rights. “The adult film industry plans to challenge the new rule as violation of the First Amendment,” says Paul Cambria, a lawyer for Hustler and other adult film companies. “If they can’t get you for obscenity, they’ll get you for violating record keeping.” (And, by “get you,” he means the office can slap you with hefty penalties, such as five years in prison if you fail to keep these records. Some hard-core criminals don’t even face those stiff penalties.) Obscene material does not fall under the umbrella of our First Amendment, however, pornography is subject to little regulation.
What’s the difference? The Supreme Court in Miller v. California held that the test for obscenity was whether the material would be found appealing to the prurient interest by an average person applying contemporary community standards, depicts sexual conduct in a patently offensive way and has no serious artistic, political or scientific value. In opposition, Supreme Court Justice Stewart famously stated that although he could not precisely define pornography, “ I know it when I see it.” Justice Anthony Kennedy further expanded upon our freedom of expression when he noted that "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end.” The feds can hardly keep our Social Security information safe and our Attorney General just resigned under a storm of controversy surrounding truthful testimony, are we expected to simply roll over and let the government invade more of our privacy and infiltrate our freedom of expression? I’m not so sure.
Furthermore, the First Amendment explicitly states, “Congress may make no law abridging freedom of speech.” The most obvious application of this sentiment is censorship, but the high court takes a functional approach in defining “abridgement” and proscribes acts that may have a deterring or chilling impact. Disclosure requirements that force name identification without sufficient cause are often unconstitutional because they “discourage participation.” Simply put, it’s potentially embarrassing to disclose to the your involvement in the porn industry to government officials. And, if this disclosure deters you from working in the industry, such identification requirement unconstitutionally abridges your rights.
John Depetro, a radio talk show host, thinks the DOJ is well within its right and has just cause. “This has to do with child exploitation ... I don‘t think the forefathers, when they talked about the First Amendment, were thinking of the money shot. These are people that enjoy freedom of expression, but I think it‘s not that much to ask for someone who‘s making a lot of money — let‘s find out, who are these people?”
The porn industry, via Ron Jeremy, the most famous star in the biz, defends itself by saying that underage stars are virtually a non-issue since the industry self regulates — pornographers already collect IDs from every performer. Jeremy says that in the entire 29 years he’s worked in adult films, only two underage girls have slipped through with fake IDs. That’s a better track record than any bar or liquor store I know of keeping out minors! Jeremy also says the industry requires either a passport or license — nothing else passes.
Porn is undoubtedly a thriving industry and children certainly do need to be protected from participating in these films, but there doesn’t seem to be any provision that actually protects the children. Instead, this proposal seems little more than a series of requirements to monitor records. The complications, such as invasion of privacy and violation of First Amendment rights, appear to outweigh what’s gained if the bill passes. The department disagrees with my cost-benefit analysis and suggests one of its own. “The benefit of the rule is that children will be better protected from exploitation in the production of visual depictions of sexually explicit conduct by ensuring that only those who are at least 18 years of age perform in such depictions. The cost to the industry includes slightly higher record keeping costs,” the agency argued.
Bottom Line: I adamantly agree that we need to protect child exploitation, but I doubt the feds “porn ultimatum” is the right vehicle. It not only seems like a waste of energy and resources, but a violation of our constitutional rights. I’m with Ron Jeremy on this one — after all, he’s the expert.
• FEDS' PORN ULTIMATUM
• Child Exploitation and Obscenity Section
• Wiki - Child Exploitation and Obscenity Section
• Feds want the names of every porn star to protect the children
• Constitutional Law: Principles and Policies Third Edition
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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.