Colorado- Dave Cummings, who describes himself as the world’s oldest active heterosexual male porn star, watched from a front-row seat in federal court Tuesday as lawyers battled over a law aimed at curtailing child pornography.
He and other foes of recent changes to that law believe it violates the First Amendment rights of employees in the multibillion-dollar adult entertainment business – and also that it won’t work.
“We’re all against child porn, but this isn’t the way to get rid of it,” said Cummings, 65, of San Diego, whose Web site promotes his appearance in The Best of Babyface Xtra with the teaser that “There’s nothing better than a young, barely legal girl” who enjoys sex.
Cummings, the Free Speech Coalition of Colorado, and Free Speech Coalition Inc. – a national trade association of 600-plus adult entertainment industry businesses – sued U.S. Attorney General Alberto Gonzales after the law was changed.
They filed it Denver because they believed a prior ruling by the Denver-based 10th U.S. Circuit Court of Appeals set a favorable precedent.
Tuesday’s hearing before U.S. District Judge Walker D. Miller sought a preliminary injunction against enforcement of the law. Miller is expected to rule soon.
The lawsuit was triggered by revisions to the Child Protection and Obscenity Enforcement Act of 1988, which broadened the requirements for producers of explicit material to verify that all performers are 18 or older. The law sets strict rules for making records available to inspect.
The amendments to the law extend the requirements to distributors as well as producers. For example, after a producer provides adult content to a Web site, that Internet site must maintain age-verification records of every performer for seven years. Failure to comply could earn first-time violators five years in prison, or two to 10 years for a second offense.
U.S. Justice Department Trial Attorney Samuel Kaplan told the judge that Congress’s intent was not to infringe on adults’ enjoyment of adult entertainment.
“Child pornographers will be denied access to commercial markets, and everything else will go forward,” he said.
The Free Speech Coalition’s “White Paper 2005” cites a U.S. News & World Report study stating that in 1997, the adult entertainment industry realized $8 billion in annual revenues, while Adult Video News estimated that was low by $2 billion to $3 billion.
Kaplan said in court Tuesday an estimated 500,000 U.S.-based Web sites now offer explicit content.
“It may well be that this gets batted back down to Congress to write a new law that’s constitutional,” said Denver-based First Amendment attorney Arthur W. Schwartz, a lawyer for the plaintiffs.
“So far, their batting average for doing so isn’t that great.”
The law
• The key section of the Child Protection and Obscenity Enforcement Act of 1988
§ 2257: Record keeping requirements
Whoever produces any book, magazine, periodical, film, videotape, or other matter which . . . contains one or more visual depictions . . . of actual sexually explicit conduct . . . shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.