But the indictment returned against Isaacs on July 25 has commenced a case that should not be cavalierly dismissed by the industry. It is not, in my opinion, what many have deemed — just another prosecution of some stupid shlub who should have known about serious risks and grave consequences of selling scat flicks in the current climate of federal hostility to sexual content. In fact, I believe that his case is one that deserves the rapt attention of every adult content producer and every adult content distributor, including web-based businesses. I say this not just because it is the first federal obscenity prosecution in Los Angeles in more than 15 years, or because Isaacs faces potential incarceration of up to 35 years and huge fines, and not just because the case is the first to include allegations of violations of 18 U.S.C. § 2257 in the original indictment. I believe that the Isaacs prosecution deserves particular attention by businesspersons in this industry, who should always take note of federal enforcement of the obscenity laws or the 2257 regulations, because of two very unusual features.
First, the fact that the case will be tried in what is arguably the most tolerant, and therefore, most difficult community in the country for federal prosecutors to obtain an obscenity conviction, even with respect to the "extreme materials" at issue in the case. Moreover, it is also important to note that the government selected the L.A. venue rather than a more conservative jurisdiction in which a jury could be empanelled, that would be much more likely to find that scat and bestiality videos violate their community standards (assuming that the five charged DVD products were shipped somewhere other than Los Angeles).
Second, the fact that the two alleged violations of 2257 referenced in the indictment were not violations of the record-keeping type, but were instead alleged violations arising from a failure to properly include the compliance statement as required by the 2257 regulations.
There have already been a number of interpretations of the federal government's decision to bring this unusual prosecution in L.A. Some legal analysts have stated that the prosecution might be a "shot across the bow" of the industry, demonstrating that the government can and will still seek obscenity convictions anywhere in the country, even in porn's capital city. Others have derived a less bellicose message opining that the government is merely communicating a confirmation of its intent to limit obscenity prosecutions to "extreme" content distributors.
Regardless of whether either or both the interpretations above are correct or not, I am most concerned about the government's inclusion of the two 2257 violations in the indictment in association with the five obscenity counts. This mix approximates a problematic prosecution strategy my firm's co-founder Robert Sarno and I have often warned our clients could eventually be employed by the federal government. Specifically, since 1995 Bob Sarno and I have cautioned that full compliance with the 2257 regulations is essential, not only to prevent the dire consequences associated with a 2257 conviction, but also to minimize the likelihood of being targeted for obscenity prosecution.
The reason why we have always seen a potentially increased risk of obscenity prosecution in situations involving clear 2257 regulation violations is relatively straightforward. Simply put, successful obscenity prosecutions are difficult for the government today. This is because a conviction for distributing obscene matter requires that a jury determine that the allegedly obscene material violates the community standards of the community from which the material is transported or the community into which the material is sent. Given the fact that mainstream adult content is, and has been for some time, available in virtually every American community, the task of proving that typical adult content exceeds a community's standards has principally become the task of finding a community that is particularly hostile to adult content. This is a difficult task that grows more difficult every day as adult content becomes more and more a part of mainstream American culture.
But the inclusion of one or more 2257 counts in addition to alleged obscenity violations dramatically enhances a federal prosecutor's position. This is because the 2257 regulations are voluminous, complex and relatively easy to violate. Moreover, any violation of the 2257 regulations, no matter how minimal, exposes the violator to five years of incarceration for the first offense, 10 years for a second offense and huge fines. Remember, there is neither a substantial compliance provision nor a cure period for 2257 violations. Consequently, an indictment setting forth allegations of clear 2257 violations in addition to obscenity counts can provide prosecutorial leverage to quickly and efficiently obtain what is likely to be viewed as a "successful prosecutorial outcome," such a plea bargain by which the defendant admits distribution of obscene material and voluntarily and permanently withdraws from the adult entertainment business.
Prosecutorial Leverage
Thus, one strategy employing the prosecutorial leverage that 2257 might provide would require that the government obtain an indictment against a party alleging several obscenity and 2257 violations. Given the relatively easy task of proving 2257 violations, the accused might find himself or herself facing a prosecution in which the obscenity counts, which the government would not likely win if prosecuted alone, are paired in the indictment with 2257 violations that the government is not likely to lose. Unfortunately, the indictment in the Isaacs case contains five alleged violations of the federal obscenity statute and two violations of 2257 regulations. This combination of alleged violations approximates the prosecutorial strategy detailed above.
Even more concerning, in my opinion, than what might be the commencement of prosecutions containing both 2257 and obscenity counts, is the fact that the alleged 2257 violations were violations of 2257's requirements regarding the proper inclusion of a 2257 "compliance statement." It is ironic that after the industry's fixation with 2257 record-keeping that the first true allegations of 2257 violations included in an indictment are directed to labeling and not record-keeping.
A mix of allegations similar to that exemplified in the Isaacs indictment might, therefore, for example, put a webmaster who is not in scrupulous 2257 compliance in a position in which the webmaster would likely be able to successfully defend against obscenity allegations on the basis that his or her website and the content therein possess serious literary, artistic, political or social value. But if the webmaster finds himself or herself in a position in which the defendable obscenity counts are leveraged by 2257 violations that are difficult, if not impossible to defend, the webmaster might have little choice but to try to negotiate a plea bargain. The kinds of plea bargains entered into by the Department of Justice during the last big obscenity prosecution sweep in the late 1980s and early 1990s, included huge fines and a "voluntary" agreement by the defendant to quit the adult business and never return.
Given the number of adult entertainment companies that are not fully compliant with all the numerous regulations that make up the 2257 regulatory scheme, the strategy above could be used to force a relatively large number of adult companies out of the business in a relatively short period of time. This is a frighteningly useful political tool that could potentially be used by the administration in a critical election year where the campaign issues for the Republicans are likely to be oriented toward "family values" and other "cultural" issues and away from national defense and fiscal conservatism.
So, in sum, I am hoping the Isaacs case, rather than be ignored, becomes a loud wake-up call for the industry that inspires adult entertainment entrepreneurs to take any remedial measures that might be necessary to be sure that they are full compliance with all aspects of the 2257 regulations, including those that pertain to the content and placement of the required compliance statement.
For example, many adult entrepreneurs do not know that as a part of the Adam Walsh Child Protection Act signed into law last year by President Bush, a part of the 2257 regulations, 18 U.S.C. § 2257(3)(1), was amended to require the compliance statement on every page of a website containing materials subject to 2257. That section, which is currently statutory law now in effect, states:
"(e)(1) Any person to whom subsection (a) applies shall cause to be affixed to every copy of any matter described in paragraph (1) of subsection (a) of this section, in such manner and in such form as the Attorney General shall by regulations prescribe, a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located. [In this paragraph, the term "copy" includes every page of a website on which matter described in subsection (a) appears."]
As usual, I strongly suggest that you consult an attorney who is knowledgeable and experienced in 2257 matters, particularly if you operate an adult website as there is some confusion about the current requirements for web site labeling requirements. In fact, if the Isaacs case is a harbinger of things to come, it is now more important than ever to get good adult entertainment law counseling, particularly regarding both 2257's record-keeping and labeling requirements.
Gregory A. Piccionelli specializes in Internet Law, Entertainment Law, including Adult Entertainment matters, Intellectual Property Law, and Free Speech issues. He can be reached at Piccionelli & Sarno, 1925 Century Park East, Suite 2350, Los Angeles CA 90067; (310) 553-3375.
