Child Protection and Obscenity Enforcement Act

Child Protection And Obscenity Enforcement Act

The Child Protection and Obscenity Enforcement Act of 1988, title VII, subtitle N of the Anti-Drug Abuse Act of 1988, Pub.L. 100-690, 102 Stat. 4181, enacted November 18, 1988, H.R. 5210, is part of a United States Act of Congress which places stringent record-keeping requirements on the producers of actual, sexually explicit materials. The guidelines for enforcing these laws (colloquially known as 2257 Regulations (C.F.R. Part 75), part of the United States Code of Federal Regulations, require producers of sexually explicit material to obtain proof of age for every model they shoot, and retain those records. Federal inspectors may at any time launch inspections of these records and prosecute any infraction.

While the statute seemingly excluded from these record-keeping requirements anyone who is involved in activity that "does not involve hiring, contracting for, managing, or otherwise arranging for, the participation of the performers depicted," the Department of Justice (DOJ) defined an entirely new class of producers known as "secondary producers." According to the DOJ, a secondary producer is anyone who "publishes, reproduces, or reissues" explicit material.

On October 23, 2007, the 6th Circuit U.S. Court of Appeals ruled that the record keeping requirements were facially invalid because they imposed an overbroad burden on legitimate, constitutionally protected speech. However the US DoJ, under control by US Attorney General Michael B. Mukasey, has asked for, and was granted, an en banc review of the initial decision of the 6th Circuit Court in order to see if the initial decision should be overturned. The Sixth Circuit subsequently reheard the case en banc and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents.

The United States Supreme Court refused to hear (denied certiorari to) the April 2009 challenge to Connection Distributing Co. et al. v. Holder, the Sixth Circuit Court of Appeals decision on the legality of 2257 and its enforcement. (See "Order List", Monday, October 5, 2009).

As of 2012, the Free Speech Coalition (FSC) is actively appealing in the Third Circuit the 2009 Sixth Circuit decision and U.S. Supreme Court refusal to hear the appeal.