It wasn’t long ago when Miley Cyrus was photographed exiting her vehicle and it resulted in her hoo-ha being exposed. Released willingly by Perez Hilton, this raises an interesting (yet, unexpected) legal conflict between the First Amendment and record-keeping requirements of adult publishers.
A censored version of the image is accessible here [moderately-NSFW].
What makes this celebrity photo of her hoo-ha different? Miley is a minor, 17. Previously, when celebrities have been caught with their skirts up, they have all been legal adults in public. What is especially chilling is that an adult, Mario Armando Lavandeira, Jr (Perez Hilton), published a photo with knowledge she is a minor. Legally, this is no different from child pornography. In fact, there are laws that regulate an entire pornography industry — 18 U.S.C. § 2257. Simply put, in order to publish sexually explicit content, the publisher and producer must retain proof of legal identification of a performer. Failure to do so is a felony and punishable by up to five years in prison. And even in the best of circumstances for Perez, obtaining proof after the date of film is not retroactive.
The spirit of the Child Protection and Obscenity Enforcement Act is intended to prevent performers from using false identities and to be underage when performing sexual acts. The actor Traci Lords was the subject that initiated the controversy because she used a false name and was sixteen when she posed for Penthouse. As a result of this incident, widespread enforcement among producers and “secondary producers” (marketers) began. Thus, every adult website that features sexually-explicit content must meet 2257 compliance otherwise risk investigation and be raided by the feds. A more verbose explanation of the history of the act is available here. The purpose was to prevent minors from being in porn.
Remember the Girls Gone Wild franchise? Of course you do. Joe Francis, founder and CEO of Mantra Films, served eleven months (without bail) because he acted as a secondary producer of content (including a handful of misdemeanors) — where there happened to be minors who showed their hoo-has. The actions that put Francis behind bars is no different from what Hilton did. Participants didn’t need to engage in sex; only participate in sexually-explicit “themes” where they flashed the camera and showed their hoo-has. I’m not saying the judgment was wrong — I’m saying this is the legal precedent for why Perez Hilton could be facing jail time.
The other side of the issue is how far does the legal protection of the press cover in situations like this. This conflict has been in and out of Supreme Court multiple times with no clear legal precedent. Does First Amendment protection of the media/press extend to bloggers? Sensational bloggers, too? This may explain why Perez hasn’t quite found his way into a pair of handcuffs, yet.
Perez may face world of legal hurt for his poor judgment in releasing the photo. Violations of 18 U.S.C 2257 are not mere civil infractions — any law enforcement agency can potentially arrest him. However, this also poses an interesting legal challenge — is it journalism or pornography? I’m sure every adult website would love the immunity that “journalism” provides, but where do we draw the line?
Sure, the photo is in public.
Sure, the photo is of newsworthy value.
But, the subject is a minor. End of discussion.
Either way, I want this type of behavior to cease. Use your best judgment before publishing content. The more publishers fail to regulate themselves, the more legislation will do it for them. Are bloggers members of the media? One side of me says yes; however, with actions of Hilton, I have to shake my head no. Nonetheless, bloggers will continue to be content producers. Their role requires a sense of awareness and responsibility before publishing sensitive content.
Thoughts?
