Quote:
Originally Posted by Barry-xlovecam
non-commercial???
If the entire 6th Circuit Appellate Court ruling in §2257 is not sure ? I don't think we could be either ... |
How are you reading the text of that quote and coming to the conclusion that the 6th Circuit was 'not sure' whether the statute at issue in the
Connection case (which was 2257, and NOT 2257A) covers commercial and/or non-commercial distribution?
The last line of what you quoted says:
Quote:
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Yet subsequent amendments to the law, apparently in response to a Tenth Circuit decision addressing a related point, Sundance Assocs., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), make it clear that the law covers commercial and non-commercial pornography. ..."
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Sounds like they were pretty sure, to me. ;-)
That's all beside the point, though, because the
Connection case involved 2257, not 2257A (which didn't exist yet when
Connection was first filed) and in the CFRs that pertain to 2257A it states, very unambiguously, that 2257A does NOT cover non-commercial depictions.
Here's the text of CFR 75.9, which sets the conditions under which a depiction is subject to 2257A, rather than to the main body of 2257 and the CFRs that pertain to it. Please note that ALL of these conditions must apply in order for the depictions to be subject to 2257A:
Quote:
(a) In general. The provisions of §§75.2 through 75.8 shall not apply to a visual depiction of actual sexually explicit conduct constituting lascivious exhibition of the genitals or pubic area of a person or to a visual depiction of simulated sexually explicit conduct if all of the following requirements are met:
(1) The visual depiction is intended for commercial distribution;
(2) The visual depiction is created as a part of a commercial enterprise;
(3) Either?
(i) The visual depiction is not produced, marketed or made available in circumstances such that an ordinary person would conclude that the matter contains a visual depiction that is child pornography as defined in 18 U.S.C. 2256(8), or,
(ii) The visual depiction is subject to regulation by the Federal Communications Commission acting in its capacity to enforce 18 U.S.C. 1464 regarding the broadcast of obscene, indecent, or profane programming; and
(4) The producer of the visual depiction certifies to the Attorney General that he regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer. (A producer of materials depicting sexually explicit conduct not covered by the certification regime is not disqualified from using the certification regime for materials covered by the certification regime.)
(b) Form of certification. The certification shall take the form of a letter addressed to the Attorney General signed either by the chief executive officer or another executive officer of the entity making the certification, or in the event the entity does not have a chief executive officer or other executive officer, the senior manager responsible for overseeing the entity's activities.
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By the same language that it CFR 75.9 uses to differentiate the content that is subject to 2257A instead of 2257, the CFR makes it clear that 2257A could not be applied to the depiction that Weiner posted to his twitter account. Among other things, Twitter is obviously NOT "subject to regulation by the Federal Communications Commission acting in its capacity to enforce 18 U.S.C. 1464."
2257A is effectively a loophole designed by Congress to provide producers of mainstream entertainment (i.e. "Hollywood") whose depictions include simulated sex an easier means to be compliant with the age-verifying/record-keeping requirements than is offered to producers of actual sexually explicit conduct (i.e., "porn").
In the end it doesn't matter: Weiner won't be prosecuted under either 2257 or 2257A. The difference (and my assertion) is that he
can't be prosecuted under the latter, because the plain language of the statute and its CFRs simply preclude that possibility.
