Porn law follies

I read two articles of note this weekend about porn laws you should check out: one is the curious case in which it’s entirely possible that swingers — those happy, freewheelin’ “wife swappers” we all know and love — may actually be the ones to break the idiocy of 2257 wide open. The other notable porn law news is that the Indianapolis Museum of Art found the state’s newest porn law to be so stifling, it’s joining a suit filed by the ACLU (thanks, Tyler!). Let’s start with that one because as Tyler Green from ArtsJournal.com put it, “the law is silly, the response is superb”. In the IndyStar Tim Evans writes, IMA, ACLU sue over rule that sellers of ‘sexually explicit’ material must register:

The Indianapolis Museum of Art, which sells art books containing images of nudes painted by the Old Masters, joined a civil rights group Wednesday in suing over a law that would require a business selling pornography to register with the state. Maxwell L. Anderson, Melvin & Bren Simon director and chief executive of the IMA, said he is concerned about the law’s effect on the museum and the broader message it sends.

“Our role in this community is to foster tolerance for creativity, and this law is completely in opposition to that mission,” Anderson said. He added that the law “is not a signal of a progressive place.”

Filed by the American Civil Liberties Union of Indiana and attorneys for several national organizations representing sellers of books, CDs and DVDs, the lawsuit asks a federal court to bar enforcement of the law, which goes into effect July 1 and is aimed at new or relocating businesses that sell “sexually explicit” material.

The suit’s target is House Enrolled Act 1042, approved this year by the General Assembly. It requires businesses that sell such material to pay a $250 fee and register with the secretary of state. The suit says the law also appears to require employees of the businesses to register and pay the fee.

Ken Falk, legal director for the ACLU of Indiana, said the law is vague and overly broad and violates the First Amendment. “Why would an institution like the IMA even have to consider whether a great work of art is somehow going to be labeled as falling within this statute?” he said.(…read more!)

Right — requiring so-called adult business employees to pay $250 and register with the state!? That seems to me like strongarm tactics to scare off adult business employees, not to mention that it would make the state a lot of money for a rather dubious end. Like anyone who works at the local dildo hut can afford to pay for the privilege of ringing up lube all day, or want to have to register with the state * like a sex offender*. You know, I’m really in favor of laws that make sense when it comes to kids, adults and porn. Too bad we don’t have any. Like, last week the Yale Law Journal covered the issue of swingers and 2257 (via + PDF @ Viviane’s). It’s framed around how 2257 affects Hollywood and targets groups that are indeed deserving of constitutional protection. That gives you an idea as to how ridiculously the law was put together — in theory it’s to protect kids from being performers, in practice it’s a totally unhelpful, rights-trampling mess for everyone involved and doesn’t protect kids at all. It’s actually one of the best articles on 2257, the law’s history, explanation and all, that I’ve ever read. The article is also chock full of links to PDFs — so very excellent. Here’s a swinger-pertinent snip:

(…) Connection III was the culmination of twelve years of litigation that had traveled up and down the federal court system. The case began in 1995 when Connection, a publisher of “swingers” magazines, filed suit challenging the constitutionality of § 2257. Along with articles and editorials relating to the “swinging” lifestyle, Connection’s magazine would also include member-submitted sexually explicit photographs of couples seeking to meet other couples.

The [Sixth Circuit] court held that the 2006 amendments to § 2257 significantly expanded what materials are impacted by the statute. Specifically, the statute covered all sexually explicit photographs and images regardless of whether they were produced for commercial purposes or with the intent to be shown to others. Consequently, “a married couple who videotape or photograph themselves in the bedroom engaging in sexually explicit conduct would be required to keep records, affix disclosure statements to the images, and hold their home open to government agents for records inspections.”

While the court did not dispute the legitimacy of the government’s goal of eradicating child pornography, it noted that this regulation of protected legal speech does not further that aim. There already exists a statutory regime that makes the production and distribution of child pornography illegal. In that regard, the court held that the § 2257 is overbroad and infringes on constitutionally protected speech.

In holding that the statute was overbroad, the court identified two constitutional rights that were being infringed. First, adults have the constitutional right to engage in sexual conduct. Second, individuals have the right to engage in anonymous speech — a right violated by § 2257’s requirement that individuals reveal their real names.

The court further warned that statutes are especially suspect when “enforcers can seek out and silence particularly disliked people or speech.” The court appeared to frame “swingers” as such a group deserving of constitutional protection. Finally, the court identified the chilling effect of § 2257 (… read more!)