Section 2257 Home Page
Section 2257 Resources on XXXLAW.COM
The most comprehensive collection of Statutes, Regulations, Cases, and Materials about Title 18 United States Code Sections 2257 and 2257A collected anywhere. Anywhere.
A handy Section 2257 Inspection Card for your wallet may be downloaded and printed here.
Updated July 25, 2013. Judge Baylson's Memorandum in the FSC "Philadelphia Case" added.
- Every Webmaster's Primer on Section 2257 Compliance, 5th Edition (2012) provides some serious navigation through the turbulant waters of 2257. This work has been widely distributed over the Internet; its Fourth Edition was the centerpiece of the print August, 2006 Show Edition of AVN Online. It has now been updated to 2012. It starts with the Traci Lords story and hits up the Bieyanka Moore scandal in Florida; a very practical and readable account, with footnotes for the seriously-minded tracing the history and evolution of the statute, the regulations, and the litigation concerning both. This information is available virtually nowhere else in one place.
- The actual text of the statute, Title 18 United States Code Section 2257, may be found here.
- The actual text of Title 18 United States Code Section 2257A may be found here.
- The actual text of the definitional statute, Title 18 United States Code Section 2256, may be found here.
- The Attorney General's Regulations in their present form may be found here.
- The most recent (December 18, 2008, effective January 20, 2009) promulation of the Attorney General's Regulations (with official commentary) may be found here.
- For historical research, the prior Proposed Rules and Final Rule Changes that are no longer current. 2004 Proposed Rule with Comments. 2005 Final Rule with Comments. 2007 Proposed Rule with Comments.
- An historical "redline" version of the Regulations, contrasting the present Regulations (which became effective on January 20, 2009) and the last prior regulations (effective June 23, 2005) may be found here. The changes are highlighted by a line running through the deleted or discontinued text and underlining the added/new text. Those prior regulations are set out in the left column of the table for historical reference and they are coded with blue text to demonstrate how they had been changed from the original, 1995 Regulations.
- * All of the most significant judicial decisions about - and Congressional changes to - Section 2257 are found here.
The Report of the Meese Commission on Pornography that inspired the enactment of Section 2257.
- The First Annual 2004 Report of the Attorney General to Congress on Section 2257 enforcement.
- Attorney General Alberto Gonzales designates the FBI to conduct 2257 Inspections, October 28, 2005.
- Section 2257 Inspection Card for your wallet may be downloaded and printed here.
- Special Materials about the ongoing "Philadelphia Case". On July 18, 2013, Judge Baylson issued his Memorandum substantially upholding the constitutionality of Section 2257 and this document amounts to his trial verdict.
- Earlier "Philadelphia Case" Materials. On November 26, 2012, Judge Baylson denied the Government's Motion for Partial Dismissal of the FSC case, a motion that would have prevented the present litigation of whether inspections under Section 2257 will unconstitutionally violate the privacy rights of millions of ordinary Americans who will be, according to the Third Circuit, subject to inspection of highly personal pictorial and video material. The Government's Memorandum. The Free Speech Coaliton's Opposition. The Reply of the Government. And finally, Judge Baylson's Memorandum of December 5, 2012 explaining his Order to DENY the Government's motion. (Expect long download times for these long Acrobat documents.) You will find documents from the earlier history of the case - including Judge Bayslon's 2010 Order dismissing the Philadelphia FSC 2257 Case, an audio file of the January, 2012 oral argument in the ensuing appeal, and the Opinion of the Third Circuit reversing him and remanding the case back to him on the 2257 Cases Page of this site.
About Section 2257 Generally - Its Place, Purpose, and Design
Title 18 of the United States Code compiles the general criminal laws of the federal government. Sections 2251 and the Sections which follow it all concern the protection of childen from sexual predation including their exploitation by pornographers.
The buzzword "Section 2257" or simply "2257" as used in the adult industry usually means not only the statute itself, but other closely related statutes including 18 USC 2256 and 18 USC 2257A and the Regulations, promulgated by the US Department of Justice (DOJ) under the authority of those statutes, to implement them.
The object of Section 2257 is to prevent children (any person under 18 years of age, no matter whether married, a parent, and regardless of sexual experience, is a "child" under the statute) from being the subject of imagery depicting actual explicit or simulated sex, including images of lascivious nudity. As most recently interpreted by the Justice Department, it will apply only when the imagery is made for commerce or trade.
The requirements of Section 2257 extend to all graphical representations and impose a series of duties on those who create the images related to data acquisition, record creation and maintenanance, notice of compliance, and inspection on government request. 18 USC Section 2257A provides a kinder, gentler, and easier solution for producers who exclusively create and publish mere nudity or simulation, if they keep regular records such as employment records and file a certification with the Attorney General annually. A first violation of either (or their implementing regulations) can be punished by a term of up to five years imprisonment. A second conviction requires a sentence of two years imprisonment and may extend to ten years. These statutory provisions depend on definitions found in Section 2256.
Section 2257 charges the Attorney General with the responsibility of promulgating Regulations that specify required standards of compliance and enforcement with greater particularity.
Those Regulations were first written in the early 1990's with print media, film, videotape, and optical discs in mind. The Internet simply was not on the radar when those regulations were written. After the advent of the Internet, in the second millenium, Attorney General John Ashcroft explained to Congressman Jim Sensenbrenner, who had inquired about why this law had not been enforced, that the regulations needed to be brought up to date to existing technology before a system of enforcement could begin. Those of us who had studied Section 2257 before then were skeptical about that, because the fairly elastic language of the regulations used the term "other matter" in a manner that seemed to us to more or less work to cover web operations. Changes ultimately were made that dealt with the Internet as a graft or gloss upon its print, film, tape, and disc origins, leaving certain more fundamental differences between the old and new media unadressed.
The Status of Section 2257 Enforcement and History of its Litigation
The number of prosecutions under this scheme have been scant, largely because it was enforced by inspections for only a brief period of about 13 months (roughy August 2006 to September 2007) as a pilot program of the FBI; no prosecutions based on the statute were commenced. (There remain on the books at least one reported military case and the guilty plea of Joe Francis of Girls Gone Wild fame to a Section 2257 crime, engineered as part of the criminal disposition of a case that was originally more serious.) There is no injunction or agreed order in place to prevent its present enforcement; It appears likely that the Justice Department has informally suspended its enforcement program as it watches and waits for the latest round of litigation to come to resolution.
A series of lawsuits aimed at the invalidation of this scheme of regulation have ensued from the time of original enactment and then from time to time, periodically, as the statute and regulations have been amended. Essentially none of the constitutional arguments against the scheme have enjoyed enduring victory in court, but the pressure of litigation has caused the Justice Department to amend its implementing regulations to eliminate the most obnoxious requirements, to interpret the surviving regulations to have application only to materials made for commerce or trade, and to provide for independent records custodians. At the time of this writing, the defeat of the Free Speech Coalition's latest lawsuit in Philadelphia is on appeal to the Third Circuit, the appeal is fully briefed, oral argument was conducted in January, 2012, and the case awaits the decision of the Court of Appeals, probably later in 2012. Should the Court of Appeals finally determine the case, It is likely that the decision in either direction is likely to induce a petition for review in the United States Supreme Court; the Supreme Court has previously declined to take the issue of the constitutional validity of the Section 2257 scheme (after the Sixth Circuit en banc overruled a prior conflicting decision of a three-judge panel and affirmed the scheme's validity in the Connections case). However, the tenor of oral argument before the Court of Appeals in the Philadelphia case suggested to me the likliehood that the matter will be remanded to the District Court for an evidentiary hearing - and that's exactly what happened. On remand, a trial was conducted. Judge Baylson issued his ruling on July 18, 2013 after trial, substantially upholding the statute. I've written at length about what I believe are mistakes made by him in disposing of the case. Almost certainly, it will now go to the Third Circuit again.
It is my view that deep fundamental and foundational parts of the scheme are flawed at their very core, conflicting with due process of law, in a manner that has not been addressed in any of the litigation so far undertaken by the bright First Amendment and Privacy lawyers. Should they prevail, the First Amendment will have served well and that will be good enough for everyone's purposes. Should they fail to win the day, however, appropriate cases involving criminal defendants will be defended by this office with constitutional arguments that have not been advanced in the prior cases.
A chronological collection of tables and charts showing the evolution of the Statute and of Regulations proposed and promulgated for the implementation of Section 2257. These resources will chiefly be of use to lawyers and legal writers; they are of a historical nature only and address changes over time. The large majority of the text sets out provisions and commentary that are no longer in force and effect.
- 2004_Proposed_Regulatory_Changes_Redlined This table relates the old, 1995 Regulations to a DOJ proposal for their change in 2004. The "existing regulations" cited are the 1995 Regulations.
- 2005_Changes Three Column Table This table relates the 1995 Regulations to the June, 2004 proposals, and finally to the Regulations promulgated and in effect on June 23, 2005.
- 2005_Five Column Table This table is truly one of a kind. It sets out the original 1995 Regulations, the June, 2004 proposals, the DOJ commentary on those proposals correleated to track the respective provisions they respectively address, the June 23, 2005 promulgation of the Regulations (in force and effect until January, 2009), and the final column of this table correlates the Attorney General's commentary upon each respective provision of the June, 2005 version of the Regulations.
- 2006_Statutory Changes This table sets out (in redline fashion) the amendments made to the statute itself, Section 2257, in 2006.
- 2007_Proposed Changes Intended to address proposals made by the Justice Department for the amendment of the regulations on July 12, 2007, this table sets out the Regulations in force and effect at that time, contrasting them with both the 1995 original promulation and the new proposals made in 2007.
- 2009_Regulatory Changes Table This table, also set out above in the table and text, contrasts the current Regulations which went into force and effect on January 20, 2009, with their immediate predecessor Regulations.
Copyright 2013 J. D. Obenberger. All rights reserved.
This website and its contents are written to generally inform the public and they do not provide legal advice nor establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult websites, content producers, and other adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is firstname.lastname@example.org.
J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented online programs.