2257 In Its Death Throes

Today the 3rd U.S. Circuit Court of Appeals vacated and remanded a lower court’s July 2013 ruling that held that performer record-keeping for adult entertainment producers are constitutional.

This all but strikes down the law. Technically it only applies to the third circuit but it does set a precedent that most prosecutors would not challenge.

What is interesting is that the 3rd Circuit is the Pennsylvania, Delaware. New Jersey area, and thus does not apply to most of Porn Valley which is in the 9th Circuit. But as I noted it sets a precedent.

Already The Free Speech Coalition is on record saying that if you are not in the third circuit you have to be an FSC member for the ruling to apply, that is an ABSOLUTE Falsehood. Being a member of a trade organization does not have any bearing on the constitutional protections you have under United States law, being an FSC member does NOT in any way protect you any differently than not being an FSC member.

The FSC does deserve some credit for following this through, no doubt, it is probably the only positive thing that has come from them in the last 20 years, then they fuck it up by saying it only protects members of the FSC if you are outside the 3rc circuit, that is complete bullshit.

In the end I think the ruling is spot on, the previous ruling that 2257 amounts to a warrant-less search was correct, but still the presumption of innocence was completely lacking, in that a producer has to prove that he did not commit a crime that in all likelihood didn’t happen.

15 Replies to “2257 In Its Death Throes”

  1. Toby

    Glad to see the courts finally ruled on the actual constitutional merits. I have to wonder why it took so long when many of us, that are far from constitutional scholars, have been saying this should be the case for a couple of decades now.

    As for the money grabbing FSC bullshit… Two hands high with a pair of middle finger salutes, aimed in a general westerly direction.

  2. Karmafan

    The FSC will do anything to try and make themselves look relevant and important. Mostly (on Diane Duke’s watch) they were as useless as tits on a bull.

  3. rawalex

    It doesn’t really strike the law down. It does remove one of the biggest issues, that of warrantless searches. That means that a search of records generally would not be done unless there is a criminal investigation where police could swear out a warrant for the search, which requires probable cause. That is a VERY high bar to pass.

    However, this does not mean that 2257 records are no longer required. It also does not mean that you don’t have to have the cross indexed, performer name to scene to real name to whatever matrix of stupidity that they came up with last time. It doesn’t mean that you don’t have to have a valid address in your records and operate for business hours. All of that stuff stands for the moment,

    Moreover, and this is truly important: if you are doing something that would be bad enough to cause you problems during a warrantless search, just remember that they will still bite you in the ass if a model swears out a complaint and the the police search your records. You are not suddenly free to do whatever the hell you feel like, you still need the records and they better be right and all legal (and no questionable ID cards, please).

    Since Obama has been in office, this hasn’t been a real issue anyway. The FBI, once you remove the conservative Christian “ermgerd pern!” mentality, have little or no interest in fishing for paperwork violations. They have better things to do than sort through the names of porn girls for fun.

    With some hope, the lower court will figure out that since there can be no searches without a warrant, that having to maintain office hours is pointless. Perhaps they can just generally strike down much of the mess of modifications made the last time around, and get us back to the functional 2257 pre-2000 or so.

  4. MikeSouth

    I had IDs and kept them on file even prior to 2257 its the smart thing to do you are dead right…the warrantless search part was already struck down, by a lower court but they upheld the rest of the law, this ruling struck down all of the law, at least that is my understanding….

  5. Karmafan

    Many are saying that people should NOT be able to enter porn until they are 25 (and more mature). If they were to make a law that says you must be 21 or 25 then I think it would make it better for the girls that choose to enter the industry. You might not have so many trainwrecks that enter porn and exit porn and are no better off then when they entered (mental health wise and financially).

  6. mharris127

    I have to disagree, Karmafan. If we consider someone an adult then that person should be able to make ALL adult decisions unless that person is somehow mentally incompetent. That includes what job to apply for (and work if hired), vote in governmental elections, make medical decisions, consume alcohol/tobacco (Hawaii and California have recently raised the minimum tobacco consumption age to 21 — whoever came up with that one needs to go to the nearest insane asylum), apply for and use credit/banking, join the military, marry, etc. Any policies to the contrary are asinine and ridiculous (other than the retirement age for pensions/Social Security which obviously shouldn’t be 18 or 21). If you want to raise the age of majority to 21 (when I was growing up many states had that as law and the right to vote in federal elections took effect at 21 although it wasn’t enforced other than for voting — as I can attest to having acted as an adult well before that age), fine but don’t pick and choose what an adult can and cannot do based on age if that age isn’t the age of majority or lower (lower within reason, I cannot support young teenagers in porn or three year olds driving a car).

  7. BT

    Given that people can vote, get married and procreate, serve alcohol in many states and join the military at 18, its really difficult to imagine a law that restricts entering the adult entertainment industry until you’re 21 – or 25. I’m not saying I think its a bad idea – I just can’t imagine it passing.

  8. LurkingReader

    Before this is over it will be back in SCOTUS or a new ID law will be created with the intent to protect citizens from revenge porn. Several states have already passed revenge porn laws and every argument against them has been it not necessary because 2257 ensure only people who want to be on the web are on the web. lots of industries have to contend with industry specific recordkeeping.

  9. MikeSouth

    WB LR and you make a good point, I have no problem maintaining the records required by 2257, I did so even before 2257 was introduced as a law, it only makes sense to be able to positively ID your performers. My problem with 2257 was always the warrant-less search provisions assuming guilt until you prove otherwise. In essence you have to prove you didn’t commit a crime that never happened..that I have a problem with. OTOH suppose you have a situation like Traci Lords, she had a valid US passport and CA drivers license proving her to be of legal age, should that happen again I can immediately remove all of that content because I have the recordkeeping in place.

  10. LurkingReader

    @MikeSouth

    TY Wasn’t hiding just a combo of lots of life stuff & content based posts which I generally don’t comment on 🙂

    IIRC the last ruling forced administrative requests and or subpoenas? All the varied legal scrutinizes etc didn’t take into account that revenge porn wasn’t a consideration when child protection laws were written…can’t see victim advocates letting this go with idiots setting up their peers to be raped then posting it live and/or posting to less scrupulous sites.

    Smart to avoid a Traci Lords situation yet IMO 2257 should have been less concerned with truly willing not yet legal performers and focused more on teens looking for a fun/crazy time and discovering they’d made their porn début as well as runaways or poverty stricken teens in the grey area between doing porn as survival and exploitation both of which closes too many doors to escape their situation. It bugs me that we seal all sorts of juvenile records but victims of child porn no longer have that option because the web is forever. Till porn comes up with a way to erase youthful transgressions from the web I’m sticking with ‘there ought to be a law’ which says alot since I’m against most laws in principle.

  11. MikeSouth

    No matter LR its always good to see you here, as well as everyone else, it is you guys that put mikesouth.com on top even of AVN and XBiz, nobody else has the open forum for discussion, the intelligent commenters and the tolerance for differing opinions that you find here and I am DAMN proud of that

  12. rawalex

    It’s actually one of the many things in the US that really needs to get worked out.

    I have always held the following: If you can die for your country at 18, then you can “everything else”. If you want to set the bar at 21, then do the same for military service. Someone who is mature enough to be cannot fodder for useless wars should be allowed to fuck on camera, drink, gamble, get married, get fucked, and get paid to get fucked.

    Fuck it, I’m the other side of half a century and I ain’t mature enough for many of those things!

  13. Sam38g

    Why blame the girls? Why not put the blame where it needs to be on the agents & producers who hired them? If porn didn’t want train wrecks then they would NOT have hired them in the first place.

  14. MikeSouth

    That is a great point Sam, There have been so many girls who came into this biz with no clue what they were getting into and it has come back and bitten us many times. Personally I always try to get a feel for why the girl is coming to me wanting to shoot and as I have stated many times if I dont feel right about it I wont shoot her. That may sound odd but the truth is it helps me….in weeding out girls in this manner I dont have the headaches of girls saying that they were tricked or mistreated or whatever nearly as much as I would if I didn’t.

  15. BT

    I completely understand that an 18 year old probably doesn’t have the life experience to make an informed decision about whether they should or shouldn’t do porn and the impact it could have on them down the road. That is especially true for those who might get into it to make a fast buck or because a poor choice of a boyfriend encourages them, later come to their senses and clean up their acts and find that some of their career choices are limited. Or, potentially limited should anyone find out about their porn past. Heck, 18 year olds aren’t mature enough to make sound decisions about what college to go to based on what its going to cost them, what they have to borrow and how much they party during their four years. That’s the nature of being 18. And, I can respect porn producers who say, you know what, for my shoots, I want someone with some seasoning and life experience. I’m not going to hire anyone under the age of 21 or 25. Where I have a problem is a law, when we allow them to do other stupid things.