2257 and Weiner and interesting spin by Greg Piccionelli on Xbiz

[GetSCORECash]

According to an article on Xbiz http://www.xbiz.com/news/134997 Greg makes a mention on how all media outlets are in violation of 2257.

?He is in violation of 2257 because of 18 U.S.C. § 2256 (1)(A)(v), which specifically says that the record-keeping requirements apply to the lascivious exhibition of genitals or pubic area,? Piccionelli said.

?In fact, not only is he in violation, but all broadcasters who have shown his [bottom half] as well as what was shown via a naked cellphone picture on the radio show in Florida.

Go to Xbiz for the rest of the story.


It is an interesting spin as to why 2257 is a burden.

[baddog]

With all due respect, his definition of "lascivious exhibition" and mine are on opposite ends of the spectrum. Nice try though. I wonder what his comments would be if that was as lascivious as it gets for one of his clients.

[Rochard]

I agree with Baddog (for once). The main picture in question didn't even show his cock, only the outline of his cock under his underwear.

[L-Pink]

That's a tube sock.

[JFK]

Originally Posted by Rochard

I agree with Baddog (for once). The main picture in question didn't even show his cock, only the outline of his cock under his underwear.

yeah, pretty fucking LAME

[moeloubani]

would you guys be okay with showing pictures of that clothed cock to kids? if not then it needs 2257 but i dont see how he himself violated 2257 just the sites that published his pics

[Wizzo]

LOL... I'm going to go out on a crazy limb here and bet he has proof of how old he is...

[GetSCORECash]

Originally Posted by baddog

With all due respect, his definition of "lascivious exhibition" and mine are on opposite ends of the spectrum. Nice try though. I wonder what his comments would be if that was as lascivious as it gets for one of his clients.

Baddog "lascivious exhibition" with a male is defined as erect. He has to be over 25 to be a congressmen, so you have the age defined once he got elected.

Technically they should have his ID, do they need it is up to Eric Holder.

[baddog]

Originally Posted by GetSCORECash

Baddog "lascivious exhibition" with a male is defined as erect. He has to be over 25 to be a congressmen, so you have the age defined once he got elected.

Technically they should have his ID, do they need it is up to Eric Holder.

1. Where did you find that definition?
2. How can you tell if it is erect or not? Mine certainly does not lay that way when erect. That would hurt.

[PornoMonster]

If that was even his cock.

Also, here is something that gets me. Say it is all True, he accidently tweeted a pic to the public instead of private of his underwear with what appears to be an aroused penis.

We had a President get a Fucking Blow job.....


Edit, To bad they don't enforce 2257 on Tubes and GF sites......

[arock10]

secondary producers = news outlets, are required to have 2257 info... this pic imo would definitely fall under 2257, but I'm no lawyer

[Quentin]

Originally Posted by baddog

1. Where did you find that definition?

It's not a definition you are going to find clearly stated within the language of any statute or regulation.

The idea that a clothed pubic area can be subjected to the lascivious exhibition clause stems from case law, and two cases in particular: U.S. v Dost and U.S. v Knox. These were both CP cases, and one of the questions addressed in them was whether pictures of clothed children could still be considered CP.

In Dost, the Court established a six part 'test' to determine whether a visual depiction of a minor meets the definition of a "lascivious exhibition of the genitals or pubic area" under 18 USC 2256. The Court concluded that just because the pubic area in question is clothed does not mean that display of it cannot be considered "lascivious" under the law.

(A depiction does not have to meet all six parts of the Dost test in order to be considered lascivious, btw; in that sense, this is a very different 'test' than, say, the Miller test for obscenity)

In Knox, the Court refined the Dost court's ruling, and established that things like the context of the depiction and the intent of the person who created the depiction should be relevant to the Dost test. The Knox Court also wrote that:

We hold that the federal child pornography statute, on its face, contains no nudity or discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as lascivious exhibitions, and that this construction does not render the statute unconstitutionally overbroad.

As I understand it, since the definition of "sexually explicit" is nearly identical in statutes covering CP specifically and those relevant to sexually explicit depictions of adults as well, and the "lascivious exhibition" clause appears in definitions that pertain to both, the theory is that even in the context of purely adult porn, a "lascivious exhibition" of clothed genitalia is a depiction subject to 2257.

I don't believe there is an actual case that is on point here. The attorneys who speculate that 2257 can be applied to depictions of clothed genitals are making a reasonable, if fairly conservative (from a risk assessment perspective I mean; not politically conservative) assumption about how the Court would interpret 2257, in light of Dost and Knox.

[lacuna]

Quentin is right. See: Record-Keeping Compliance For Producers of Adult Content: What You Need To Know About Section 2257

[Agent 488]

they are talking about the cock pic brietbart had originally posted on opie and anthony.



pure hard exposed cock.

[Barry-xlovecam]

18 U.S.C. §2257A is on the books ... If it was ever indicted upon it would most likely be found unconstitutional ...

Anyway, Dost is a child porn specific test — in spite of what the D.O.J.'s rationalization is.

Rep. Weiner's images have the intent of lascivious adult behavior. If anything, Weiner is guilty of extremely bad taste (political suicide actually) but there is no law against bad taste.

Furthermore, the US Attorney's Office is not going to try to bring §2257A charges in this case and jeopardize §2257A's standing over this.

I think Greg Piccionelli was making muse, possibly jest, at the ludicrous nature of the law in question ...

Offered in discussion and not as legal advice

[ThatOtherGuy - BANNED FOR LIFE]

Maybe if anything the Media was in violation of copyright? LOL

[seeric]

what Q said.

[DBS.US]

https://youtube.com/watch?v=1Lu0qhRrIow

[GetSCORECash]

Originally Posted by DBS.US

https://youtube.com/watch?v=1Lu0qhRrIow

Thanks for not posting an erect penis.

[Quentin]

Originally Posted by Barry-xlovecam

18 U.S.C. §2257A is on the books ... If it was ever indicted upon it would most likely be found unconstitutional ...

Anyway, Dost is a child porn specific test — in spite of what the D.O.J.'s rationalization is.

Rep. Weiner's images have the intent of lascivious adult behavior. If anything, Weiner is guilty of extremely bad taste (political suicide actually) but there is no law against bad taste.

Furthermore, the US Attorney's Office is not going to try to bring §2257A charges in this case and jeopardize §2257A's standing over this.

I think Greg Piccionelli was making muse, possibly jest, at the ludicrous nature of the law in question ...

Offered in discussion and not as legal advice

2257A only applies to producers who create depictions that are:

* "intended for commercial distribution" {see §2257 (h)(1)(A)(i)}

* "created as a part of a commercial enterprise by a person who certifies to the Attorney General that such person 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." {the very next paragraph, §2257 (h)(1)(A)(ii)}

As such, I have a hard time seeing how 2257A could be applied in this instance. Not only was the depiction pretty clearly not intended for "commercial distribution," my guess is that Weiner has affected nothing like the above referenced certification with the AG's office.... although if he has registered with the AG's office as a producer of simulated sexually explicit content, I'd sure love to see the initial letter he sent them. (Perhaps it would start with "Hey guys, just in case I ever screw up and post a picture of my erect penis to Twitter, I thought I'd better drop you this note, first....")

So far as I can tell, any prosecution of Weiner over his Twitter snafu would come up under the main body of 2257, under some other section of code completely outside of that section, or not at all.

My hunch? It will be "not at all." I just can't see the DOJ bringing charges in this situation under any section of law.

That practical assessment doesn't change the theoretical legal question, of course, and I agree with Barry that this is what Greg was actually addressing: Greg was talking about the way in which 2257 could, hypothetically, be applied in this situation, yes, but his more salient point was what that potential application says about the nature, purpose, scope and sense (or lack thereof) of 2257 as it is written, and in light of the legislature's intent in passing the law in the first place.

[Joshua G]

2257 might be the most irrelevent law in the USA. The Man always turns to obscenity to bully freedom fighters in the porn industry.

[Barry-xlovecam]

non-commercial???


No. 06-3822
Document: 00615407140
Filed: 02/20/2009
Connection Distributing Co. et al. v. Holder
Page: 20

"[I]nvoking the constitutional-avoidance doctrine and the rule of lenity, the government
points to language in the statute suggesting that it does not cover this situation. Supp. Br.
at 20 (noting the statute?s references to a producer?s ?business premises,? to the involvement
of multiple performers and to contractual or similar relationships between producers and
performers). The avoidance doctrine no doubt often goes a long way in defusing potential
conflicts between Congress?s enactments and the Constitution. Whether the doctrine allows
us to read the statutory text in the way the government proposes, however, is far from clear.
Viewed in isolation, the Act?s reference to ?business premises? might suggest that the statute
draws a line between commercial and non-commercial pornography. 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. ..."

If the entire 6th Circuit Appellate Court ruling in §2257 is not sure ? I don't think we could be either ...

[Quentin]

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:

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. ..."

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:

(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.

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.