Is "Stop Porn Culture" Violating Porn Laws?

Some thoughts on "Fair Use," 2257, and Stop Porn Culture's pornographic slide show

Stop Porn Culture is an organized effort on the part of a number of antiporn-feminist scholars and activists to convince people that pornography is harmful to society (and especially to girls and women) and to get them to swear off porn and to challenge other people's use of it.

Stop Porn Culture (SPC) is also a traveling porn exhibition. In fact, not only is it a traveling porn exhibition, it is a distributor of free pornographic images. Lots of them. Lots of the most hard core of them.

Some sex worker advocates that I respect tremendously, like Ren of Renegade Evolution and Blog for Pro Porn Activism (BPPA) are out there, dedicated and loud, calling SPC out on its failure to comply with a US law that distributors of pornography must follow. That law, known by its shorthand section number (2257) requires producers of pornography to maintain records of performers' identities and ages, and to make those records available for inspection by law enforcement officials. SPC does not do this. These advocates are also calling SPC out on its use of the copyrighted images without permission from the copyright owners or consent of those depicted in the images.

I sympathize. It is galling to watch SPC use the work of the people they most claim to despise, and to freely distribute images they think nobody else should be able to distribute. And it is especially galling to watch them talk about the exploitation and humiliation of the women in the images all the while continuing to humiliate those same women by publicly exposing in and then condemning their work.

I have a certain amount of ambivalence about this argument where it relates to the use of copyrighted material. There is a long history in academic work of fairly liberal interpretations of "fair use," especially the use of copyrighted materials for the purpose of criticism or analysis. It would be impossible to do any kind of dissection of cultural material without showing that material and pointing to actual examples of the thing one is criticizing or analyzing.

Yet, my ambivalence faded as I watched the SPC slide show, and when I read the script that accompanies it. Both the script and the PowerPoint file are posted freely on their web site, along with tips for presenting them. When I did read the script and watched the slideshow I got the distinct feeling that looking at, presenting and talking about all this porn in order to condemn it is pretty exciting to the folks who put the show together. (Click here to watch Gail Dines deliver a version of the presentation at Wheelock College last year and I think you will get the same impression.)

Certainly for the purposes of critique a handful of images would have served just fine. Instead there are 130 slides and most of them show pornographic images, many of them showing the most brutal, racist and misogynistic aspects of porn as if those represented the entire industry. Ernest Greene, a pornographer, sex ed filmmaker, and frequent contributor at BPPA, and a person whose work I respect a great deal, counted at least 88 noncompliant images in the show. I'm grateful to him for his count. I couldn't bring myself to go through the show a second time to do it myself. This goes well beyond what would be the presumably "necessary evil" of showing a handful violent porn images to talk about how bad porn is. This is gratuitous exhibition of "degraded" women for the purpose of exciting a crowd of people into a kind of collective emotional outrage.

In addition, as Ren has pointed out on multiple occasions, the people showing these images are the same ones who argue that access to them ought to be heavily restricted and who would really like to see them criminalized. These are also the same people who argue loudly in favor of age restrictions that, intentionally or not, end up keeping sexuality information out of the hands of teenagers. And yet these same people show these images - the ones they find so offensive and harmful - to large crowds without checking IDs at the door to make sure that minors don't get exposed.

Not only do they present their show in unrestricted environments, they offer the images online for free with little to no attempt to keep them out of the hands of minors. And they distribute the images without investigating and keeping records on the identities and ages of the performers even though they staunchly advocated for laws that required distributors as well as producers to keep exactly those kinds of records. Fortunately since the porn industry has been pretty thorough about following the 2257 record keeping requirements we can be reasonably certain that the performers are all 18 or over.

So, are they, by distributing this slide show, violating the laws that they support? It seems to me that they are violating the spirit but after some pretty careful but clearly inexpert reading, I can't see that they are violating the letter of the law.

The text of Title 18 Part I Chapter 110 Section 2257 of the US Code (2257) makes it clear that the law applies to:

(a) Whoever produces any book, magazine, periodical, film, videotape, or other matter which—

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and
(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

But it then defines "produce" in a way that excludes:

(h) (3) "mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted"

Because SPC is using only images produced by others and distributed by others, they might be understood to be merely distributing, and certainly are engaging in an activity which did not require them to hire, contract for managing or otherwise arrange the participation of the performers. In fact, that is part of the criticism leveled against them: that they are using the work of others without consent or permission.

In addition, Title 28 Section 75.1(d) exempts the distribution of such material if it is done noncommercially for educational purposes.

I am left with a couple of questions. One is about production. Does the creation of the slide show, which requires the careful selection, arrangement and packaging of images for purposes of distribution on the Internet constitute the making of a new pornographic product? And related to that regarding distribution, while noncommercial can this product be considered educational if it contains misinformation? I suspect given that laws allow for school districts to teach creationism as science that we can't enforce accuracy as a criteria for educational status, but the question is worth exploring I suppose. And of course the line between educational speech and political speech is a fuzzy one by necessity. I would not want to be told that in my classroom I could not express a political opinion so long as I was not squelching other people's freedom to express their own opinions.

So, if I were to put up a web site with pages of porn images, all produced by other people, and I labeled it as an educational site whose purpose was to illustrate or demonstrating a range of sexual activities, would I too be exempt from the 2257 record keeping laws? Since I would be clearly "purely distributing" and I would not be employing anybody and I would be serving a bona fide educational mission, would I be exempt?

I sympathize deeply with the arguments that Ren and Ernest Greene, folks I count as strong allies, are making. There is no question that the Stop Porn Culture folks are playing the "we're above the law" game. And they seem to be playing it to effect. (This is a question that goes beyond Stop Porn Culture, by the way. For example the National Center for Missing and Exploited Children is a civilian/citizen nonprofit organization to whom we are all supposed to report any instances of child pornography, even though they are not themselves law enforcement. I'm concerned about what it means when any one group of citizens becomes "trusted" to view and judge material when others who look at, research or evaluate the same material would be breaking the law.)

If we want to challenge Stop Porn Culture or its adherents I think attempting to do so through the law is probably going to be an exercise in frustration. I think they've won that round by exemptions built into the laws they helped to craft. Instead we need to challenge them on different fronts.

1. We need to challenge their premise that pornography is harmful.

Research doesn't indicate that there is a causal relationship between sexually explicit imagery and antisocial behavior. They can show the most racist and misogynistic of pornography and they can talk about correlations between viewing porn and acceptance of rape myths, but we know that correlation does not equal causation, and we know that pornography is much more varied than they acknowledge. We know that the gender inequality that is pervasive in our society is not the result of pornography but that the images in some pornography reflects that inequality. We know that if we want to widen the range of images of women we need to expand expression and not restrict it.

2. We need to keep spreading counterarguments based on hardcore democratic values of freedom and responsibility and equality.

If there are objections to exploitive or dangerous working conditions lets take those up and press for fair working conditions across all industries. If we want to stop violence and exploitation then lets work to end economic and social injustice. This isn't about sex or pornography; this is about the kind of radical inequality that designates some people as inherently worth less than others.

3. We need to continue to challenge them on their own hypocrisies.

If pornography is so dangerous, then certainly they don't need to show 80 or more of the most graphic hardcore images in order to get their point across. Surely a handful would do. They are not showing so many images because showing them is useful. They are showing so many images because showing them is exciting. Two of my favorite sex educators, Carol Queen and Robert Lawrence, told Chris and I about a long-ago conversation with Betty Dodson in which she coined the term "absexuality" to designate the orientation toward getting sexually aroused by expressing outrage over certain forms of sexual expression. If the Stop Porn Culture folks can get themselves off in public by showing pornographic images, why can't the rest of us? We should continue to call them out on their hypocritical approach and ask them to account for their behavior.

While it is pleasant perhaps to think about a legal strategy that would force these folks to abide by the rules they have caused to be imposed on others or else face prison time, I think these strategies for changing the culture are ultimately more insideously effective. They expand the freedom we want in addition to marginalizing those who would continue to stigmatize sexual expression.

Technorati Tags: free speech, 2257, pornography

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Elizabeth