You and YouPorn are now free to make porn

In a major First Amendment victory, a federal court strikes down regulations covering anyone who produces adult images.

Published October 24, 2007 7:06PM (EDT)

Hallelujah! Haul out your 8 MM, put on some lounge music, get your partner -- and maybe a gaffer, some stage hands, a caterer, a boom operator and your parents, who'll be so proud -- and get down! The 6th Circuit Court of Appeals has just ruled that you are free to make your own porn. Believe it or not, this is a major First Amendment ruling, one for which much praise is due.

The court struck down 18 U.S.C. 2257, a statute that Congress enacted in 1988 as part of an anti-child-porn law. It requires producers of "sexually-explicit" material (NSFW definition here) to maintain records on the ages and identities of their filmed performers.

If you're making a porno, that is, you've got to make photocopies of your stars' IDs and then keep diligent records of these documents, which are subject to inspection at any time by the government.

That might sound like a reasonable regulation of adult material. Trouble is, as the court points out, the law does not cover only traditional producers of adult material. The text of the statute defines a "producer" of porn as anyone who makes sexually explicit material -- even people who create images for themselves, without publishing or distributing them to anyone else.

Such a law clearly "chills" protected free speech, the court found:

To appreciate why speech would be chilled, consider the following. A couple wishes to take photographs of themselves engaging in sexual activity. To do so means compiling records, affixing statements, maintaining such records for at least five years, and opening their property up for visitation by government officials to inspect the records. It seems unlikely the couple would choose to speak when faced with such requirements, which if violated means being guilty of a felony punishable by up to five years in prison plus fines.

Until recently you might have been able to argue that such a law would not really chill much amateur conduct -- everybody knows that the government isn't interested in prosecuting normal people who are making videos to hide away in the liquor cabinet. It's only the producers of "real" porn -- commercial porn -- who needed to follow the law, while the rest of us could happily ignore it.

But these days you can't be so sure. For one thing, the government in charge has a hard-on about porn, so one can't really be sure that the folks in charge don't want to go after me and you and every amateur pornographer we know.

More important, though, is the big recent trend in porn: Web 2.0 social-networking amateur porn sites like YouPorn, Porntube, and others are fast becoming the Web's best place to get your jollies.

Those links above go to sites that are not safe for work unless you work for Dov Charney.

If you've never gone to any of these sites -- sure you haven't -- think of them as exactly like YouTube, except instead of singing a Romanian pop song the Numa Numa kid would be doing a dirty sanchez (Google it). That is, normal people like you and me (well, not like me) put up videos of their own acts of lovemaking -- a very generous description -- for others to enjoy.

Performers in many of these videos are amateurs -- they're not making any money from their submissions. The porn sites, though, are commercial entities and are raking in ad dollars.

But neither the creators nor the sites keep records on the identities and ages of the performers. And if 18 U.S.C. 2257 were applied as broadly as it is written, the sites would face little choice but to shut down.

The court's ruling is thus a major victory for Web 2.0 porn.

The death of this law -- though it's not final; the government could appeal -- is sure to prompt calls from many anti-pornsters for Congress to draw up rules that would comport with the Constitution. The court implies that requiring only commercial producers of porn -- people who intend to make money from it -- to maintain records might not violate the First Amendment violation.

The rise of sites like YouPorn could well cause an outcry for even further legislation. Because at the moment, the sites seem to operate with little oversight, and there's a lot there that many people -- even reasonable people not named John Ashcroft -- might object to.

For instance, there are lots of videos in which it's doubtful that the "performers" have even consented to being filmed, not to mention being put on display for the whole world.

Search for variants of "hidden cam" on one of these sites and you'll understand what I mean. Additionally you can find many copyright violations -- clips of longer porn movies, clips of non-porn movies, and songs that people like to use as a soundtrack to coitus.

In their terms of service, many of these sites restrict child porn and other "inappropriate" material. YouPorn, for instance, requires people who submit videos to affirm that the material they're posting does not show people under the age of 18, that it does not violate anyone's copyright, and that everyone filmed has consented to the site's terms of service.

To enforce such restrictions, some of these sites include flagging mechanisms -- if someone does post child porn, viewers can flag it, and the site can track down the submitter.

But as I say, it's unclear if the enforcement mechanisms work very well; those hidden cam videos are still up there. As these sites gain more fans -- as surely they will -- you can bet people will want a law.

[Flickr picture by Tom Adams.]

By Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

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