WASHINGTON, D.C. – Calling it the Child Pornography Prevention Act of 2005, and claiming that it “strengthens the hand of law enforcement in investigating and bringing charges of obscenity,” Congressman Pence (R-IN) introduced new legislation Monday that would extend 2257 record keeping requirements to certain instances of mere nudity and to merely simulated sexual acts, and would also extend record keeping obligations to mere distributors of adult content, which would include retail stores that only sell DVDs or videos without touching the actual content. Additionally, the law would criminalize mere “production” of obscenity, even if it is not involved in interstate commerce, enhance administrative subpoena powers to cover obscenity, and it would authorize civil and criminal asset forfeitures in obscenity cases and 2257 cases.Pence added his Bill, H.R. 3726, to the Children’s Safety Act of 2005, H.R. 3132, which was heard by the full committee today on Capitol Hill and then passed to the House of Representatives, where it passed overwhealmingly by a vote of 371 to 52, with 10 members not voting.

As is common in bills that target adult pornography, Congressman Pence used child protection aspects of the Bill as justification for introducing the new legislation.

“We specifically, in my bill, close a loophole that exists in federal law today that allows pornographers who produce child pornography at home with digital cameras, Polaroid cameras, or video cameras, downloaded on their home computers, to actually escape prosecution,” Pence said through a statement on his website. “It’s time to protect the kids, it’s time to move the Child Safety Act, and it’s time to pass the Child Pornography Prevention Act as part of it tomorrow.”

First Amendment attorney Larry Walters told YNOT that the new Bill is “tremendously disturbing,” and added that it “couldn’t come at a worse time for an industry that is reeling from the recent regulatory efforts.”

Walters pointed out that the Bill would strike existing language in 2257 that exempts mere distributors of adult content, such as retail stores, from 2257 record-keeping obligations. Additionally, Walters confirmed that the new legislation would certainly impact the mainstream Hollywood film industry by pulling simulated sex acts and mere nudity situations under 2257 requirements.

“I suppose that this could potentially help our arguments in the 2257 legislation, in that we are claiming that the entire statue is unconstitutional and goes too far,” Walters told YNOT. “It’s going even father now [in that it] attempts to regulate even mainstream Hollywood films [that] include any nudity.”

According to Walters, new forfeiture provisions proposed by the Bill could result in adult businesses having their assets seized by the government for a mere record-keeping violation.

Under the Bill, “the government can come in and forfeit the entire business” for a 2257 violation, Walters said. “The mere failure to keep the proper records justifies a criminal or civil forfeiture.”

He added that such a tool would be “a huge hammer to hold over the head of any potential defendant.”

Additionally, by criminalizing mere “production” of obscenity, the Pence Bill could result in federal obscenity charges for a husband and wife who film themselves having sex.

“This nonsense of criminalizing production of obscenity under federal law, in my opinion, is constitutionally problematic,” Walters said.

That may be good news for Extreme Associates, who is currently fighting with the federal government over charges of obscenity distribution.

“I think it’s a positive development for Extreme Associates,” Walters said. “They can now argue that Congress is out of control, that they’re expanding the scope of obscenity, and they need to be reined in by the courts.”

Walters said that the Bill also gives the government greater subpoena powers in building obscenity cases against adult entertainment companies, but said the “major problem is the huge expansion and scope of content covered by 2257.”

That means even more is riding on the outcome of the Free Speech Coalition’s challenge of 2257, which is currently underway in Denver. Walters said that the Free Speech Coalition attorneys could decide to file a “supplemental complaint” to cover issues that have arisen after the initial complaint was filed. However, since the outcome of any legal challenge is uncertain, the Pence Bill would give industry businesses a lot more to worry about while awaiting the outcome of the case.

“Now, those webmasters and content providers who thought they were operating within a safe harbor by focusing on merely nudity and not sexual acts may now find themselves squarely within the crosshairs of 2257,” Walters said. “There needs to be some legislative opposition, and that’s critical.”

Walters said that he wouldn’t consider the Bill to be a “done deal,” and added that the increased scope could align the adult industry with powerful allies in Hollywood. Because the Bill would certainly affect mainstream movie production, federal lobbying efforts could be especially productive.

“There are a host of potential constitutional problems with trying to apply record-keeping obligations to a class of protected speech that such obligations have never been applied to in the past,” Walters said. He added that the Bill, like 2257, would put the burden of proof on the adult industry and not the government.

For the adult industry, the Pence Bill underscores the importance of the ongoing Supreme Court judicial nominations. In comments yesterday during his confirmation hearings, Bush nominee John Roberts clearly acknowledged that he did not see pornography as a class of speech that should enjoy the same First Amendment protections as, say, political or “core” speech categories. Should the Pence Bill pass and be challenged by the industry, it will likely end up in front of Roberts and the Supreme Court at some point in the future.

“This is the kind of thing that would likely go to the Supreme Court,” Walters said. He added that should Roberts be confirmed and O’Connor be replaced by another conservative, as expected, the adult industry would find itself in a much harder position in any future legal challenge.