"In contrast to previous economic eras,
intellectual property will be the primary source
of new wealth in the 21st century."
- Gregory A Piccionelli, 1989
 
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A Letter To Rick Santorum With 5 Easy Questions

APRIL 2012

In a position paper posted on his website, Rick Santorum has promised that, if elected, he would “vigorously” enforce laws that “prohibit distribution of hardcore (obscene) pornography on the Internet, on cable/satellite TV, on hotel/motel TV, in retail shops and through the mail or by common carrier.” Santorum’s site complains that the “Obama Administration has turned a blind eye to those who wish to preserve our culture from the scourge of pornography and has refused to enforce obscenity laws.”

Santorum’s crusading stance against the adult entertainment industry is well known among those of us that keep tabs on the industry’s congressional foes. As a U.S. Senator, Santorum strongly supported every anti-porn bill that crossed his desk. One of the more noteworthy, regarding which he was a co-sponsor, was the Adam Walsh Child Protection And Safety Act, which became law in 2006. It dramatically expanded the scope of the federal record-keeping obligations, known in the industry as the “2257 regulations”. Prior to the enactment of the law, the 2257 regulations only applied to depictions of actual sexual conduct (actual intercourse, etc.) and did not impose record-keeping obligations on persons other than initial producers of the content. After the law’s passage, depictions of simulated sex and mere nudity became subject to the 2257 Regulations and record keeping obligations were imposed on website operators and other “secondary producers”. The same Santorum-co-sponsored legislation was also the first federal law to criminalize the mere creation of obscene content.

 

Santorum has also been unwavering in his opinion that federal obscenity laws and the 2257 regulations should be vigorously enforced by the U.S. Department of Justice against producers of all kinds of adult content, including mainstream depictions. He also fully supported Bush Administration Attorney General John Ashcroft’s policy to seek maximum sentences for violations of the federal obscenity laws and 2257 regulations.

 

But while Santorum’s anti-porn position is certainly not new, his status as a serious contender for the top place on his party’s ticket is. To be sure, Santorum is the poster child for the Republican party’s “Let’s Nominate Someone Even More Ridiculously Unqualified To Be President Than George W. Bush” movement. But as unlikely as it fortunately is that there will ever be a President Rick Santorum, I think it is important for the adult industry to be mindful of the fact that there are literally scores of millions of Americans that share Santorum’s intolerance of erotic expression and visceral antipathy toward the adult entertainment business.

 

Santorum defends his anti-porn position on his website stating that a “wealth of research is now available demonstrating that pornography causes profound brain changes in both children and adults, resulting in widespread negative consequences.” His website also asserts that “Pornography is toxic to marriages and relationships”, it “contributes to misogyny and violence against women” and that it is “a contributing factor to prostitution and sex trafficking.”

But the most important information conveyed by Santorum’s site is not that porn causes harm. There is simply no credible evidence anywhere that any of Santorum’s assertions in that regard have any basis in reality whatsoever. The real takeaway lesson at www.ricksantorum.com is that someone supported by perhaps tens of millions of Americans as a possible future commander in chief of America’s nuclear arsenal publicly makes such ridiculous and completely unsupported assertions in the first place.

I think we should all also be concerned that the guy who has won a large number of republican primaries apparently truly believes that governmental policy can and should be based on nonscientific publications, anecdotal reports, and religious dogma, all sources for Santorum’s “wealth of research” referred to on his site. And, incidentally, it is on this type of support that Santorum apparently bases many of his other cherished beliefs like the creationist view that humans and dinosaurs lived on the Earth at the same time, homosexuality is an evil elective sexual preference, and the Earth is not currently experiencing a sustained period of global warming.

Santorum’s announcement of his desire to use the full prosecutorial might of the United States government to severely censor erotic expression should be viewed for what it is, shameful pandering to the ignorant, intolerant, and growing Christofascist wing of the republican party for money and votes. And he does so advocating intolerance for expression in a way that is deeply antithetical to the principals of free speech that is the foundational bedrock of our great democracy. In fact, Santorum advocates the use of government to enforce religious morality in a manner that has a lot more in common with Islamic extremism and the methods of the Taliban than it does with American values of limited government and protection of individual freedoms. It’s clear to me, as between Osama Bin Laden and Thomas Jefferson, who would likely be the greater supporter of Santorum’s advocacy of the use of government authority to censor expression to enforce the moral dictates of a particular religion.

 

There is a statement on Santorum’s website that says that Santorum’s “vision for America is to restore America's greatness through promotion of freedom and opportunity for all”. It is clear that in the Santorum dictionary the word “all” must have a radically different meaning than the definition in Webster’s. Clearly, Santorum is not interested in promoting anyone’s freedom to create or view erotic content.

 

But, then perhaps it isn’t hypocrisy for Santorum to tout his vision of “freedom and opportunity for all” while advocating the taking of consenting adults’ freedom to view erotica made by other consenting adults whose freedom Santorum wants to completely deprive by locking them up in jail. Perhaps we can cut Rick some slack and let him have his own secret definitions for words like “all”, when associated with words like “freedom”, and “rights”, so that their meanings can be limited to referring to persons other than evil pornographers and consumers of porn. And why not? After all, even Webster’s dictionary hasn’t gotten around to including the word “santorum”, which was famously coined by columnist Dan Savage in 2003 in response to Santorum’s statements regarding gay marriage being one of the greatest threats to America. As defined by Savage “santorum” means 
"a frothy mixture of lube and fecal matter that is sometimes the byproduct of anal sex." Now, if we evenhandedly grant some linguistic license to all, it would be reasonable, accurate, and perhaps even poetic, to say that there’s a lot of “santorum” in many of Santorum’s statements. Certainly that must be true regarding his vision statement of “freedom and opportunity for all”.

 

But setting aside for the moment the lack of any credible scientific support for Santorum’s anti-porn statements and his ill-advised, and perhaps unconstitutional planned use of government power to censor speech for the purposes of enforcing a particular religion-based morality, there are a lot of practical problems and inconsistencies inherent in Santorum’s stated position. To address these issues I drafted the following letter to Rick Santorum. If you too would like to write Rick Santorum to obtain answers to the following questions please feel free to copy all or part of the following into your letter.

 

Dear Mr. Santorum,

 

On your website you voice your concern as a parent about “the widespread distribution of illegal obscene pornography and its profound effects on our culture.” You also state that if you are elected President, you will appoint an Attorney General who will enforce federal obscenity laws prohibiting “distribution of hardcore (obscene) pornography on the Internet, on cable/satellite TV, on hotel/motel TV, in retail shops and through the mail or by common carrier.”

 

I am deeply concerned that your position paper posted on your website has not addressed an even greater source of illegal pornography that is even more profoundly affecting our culture than the abundant availability of commercially produced pornography. There is now a wealth of research showing that every day a large amount of hardcore pornography is created or copied by children and sent by text and email to other minors through a process often referred to as “sexting” or by other means of illegal pornography file sharing.

 

As you know, when minors depict themselves in the pornography, as is often the case when minors engage in sexting and illegal pornography file sharing, the result is the creation and/or distribution of child pornography, an even more vile form of pornography than the commercially produced pornography presumably referred to on your website. The research also shows that persons engaged in sexting and illegal pornography file sharing virtually never create or maintain the records that are required by federal law regarding such depictions, nor are they likely to affix an appropriate compliance statement to such content also as required by law (See 18 U.S.C.§2257, 18 U.S.C. §2257A, 28 CFR 75 et seq.). (I am sure that you are very familiar with the aforementioned regulations as they are part of law that you co-sponsored.)

 

Even more disconcerting, however, is the fact that there is also a wealth of research that also shows that illegal sexting and illegal pornography file sharing by minors almost always involves the minors’ use of mobile phones and computers provided to them by their parents. Often the parents were, or should have been, aware that the communication devices they provided for their children were being used for these illegal purposes.

 

There is also a growing mountain of evidence that also shows that if left unaddressed, the sexting phenomena could soon generate more pornographic images on a daily basis than that produced by commercial pornographers! One Internet futurist predicts that this will almost certainly be the case when phone calls providing a live video component will become the norm as expected in the very near future.

 

Mr. Santorum, I am sure that you will agree that the rampant creation and distribution of child pornography by minors, often aided and abetted with material assistance by their parents, if unchecked, could potentially create an entire generation of juvenile criminals.

 

But the pandemic of noncommercial pornography being created and transmitted by children through sexting and pornography file sharing is not the only source of non-commercial pornography that is having a profound impact on our culture. Research shows that adults too, in growing numbers, are also taking hardcore photographs and videos of themselves and sending their hardcore pornography to others via the Internet. Boyfriends and girlfriends, even husbands and wives, are reportedly engaging in such activities in large numbers. Since the explicit material created and transmitted by such persons will, in many communities, be patently offensive and appeal to a prurient interest in sex, and since the material will not likely have any serious literary, scientific artistic or political value, such homemade pornography will often be obscene under federal law.

 

I assume that you, as a parent, and as former legislator with a long history of public statements in strong support of enforcement of laws to protect children, will do your best to enforce all the aforementioned federal laws if you become president. I assume this will particularly be so regarding laws that you yourself have so effectively helped get enacted, such as the Adam Walsh Child Protection And Safety Act which expanded the federal record keeping and compliance statement laws pertaining to include explicit content of the type typically involved in sexting. As you know, the same law, which you co-sponsored, also criminalized the mere creation of obscene material, such as the type of material frequently created by kids who send sexting depictions.

 

I also assume that you are no more in favor of shielding parents from criminal liability arising from their knowingly providing their children with the computers and mobile devices to enable them to violate serious federal laws such as the obscenity, child pornography and federal record-keeping laws, than you’d be willing to shield them from prosecution for providing their kids with a loaded shotgun to rob a convenience store.

 

And I also assume that as president you will vigorously enforce laws to protect children because I know you have often stated your unshakable belief that we are a nation of laws and that our failure to enforce our laws is wrong and sets a bad example. You have stated your belief in this principal consistently, for example, in support of your opinion that the federal government should vigorously enforce immigration laws against aliens that have illegally entered our country.

 

But while I would like to rely on assumptions and belief that you would follow though on your promise to use the full power of the Department of Justice to enforce federal laws enacted to protect children, because of the great importance of protecting our kids, and because past presidents have failed to follow through on their promises to enforce the many laws the federal government can use to better protect kids, I respectfully request that you unambiguously go on the record regarding the following questions:

 

1. If you are elected president will you appoint an Attorney General who will prosecute children that engage in sexting, where such sexting results in the creation of child pornography and/or obscene material?

 

2. If you are elected president, will you will you appoint an Attorney General who will prosecute children that engage illegal pornography file sharing of child pornography and/or other obscene material?

 

3. If you are elected president, will you appoint an Attorney General who will prosecute persons of all ages who create noncommercial pornography that is obscene or violates the federal record keeping laws (18 U.S.C.§2257, 18 U.S.C. §2257A, 28 CFR 75 et seq.) through, for example, their use of computers or mobile devices, or as the result of a video phone call which contains nudity or simulated sexual conduct of the type made subject to the federal record keeping laws in the Adam Walsh Child Protection and Safety Act you co-sponsored?

 

4. If you are elected president, will you appoint an Attorney General who will prosecute parents and others who aid and abet or otherwise provide material assistance to their children and enable them to create and/or distribute child pornography and/or obscene materials in violation of the federal child pornography, obscenity and/or federal record keeping laws (18 U.S.C.§2257, 18 U.S.C. §2257A, 28 CFR 75 et seq.)?

 

5. If you are elected president, will you appoint an Attorney General who will use the obscenity laws and federal record keeping laws to prosecute soldiers and others responsible for creating and distributing horrific obscene photos and videos of sadomasochistic abuse similar to the those that were created of nude detainees in the Abu Ghraib prison in Iraq?

 

As you have represented yourself in the current presidential campaign as a man of principal and consistency, I expect that your answers to all the questions above will be “yes”. If not, I respectfully ask that you provide an explanation for anything other than an unequivocal affirmative answer.

 

Sincerely,

 

Gregory A. Piccionelli

 

I doubt that I will get a serious reply from Rick. He is a pretty slippery politician that has made a good living by avoiding uncomfortable questions that highlight inconsistencies in his words, actions or character.

 

Fortunately, I don’t think Santorum will get the chance to impose his religious and cultural beliefs regarding erotic expression on the American people any time soon.

Mitt Romney will likely clinch the nomination. And even if Santorum somehow pulled off an upset, polls have consistently showed that Santorum would likely lose by double digits to President Obama in the general election. But stranger things have happened in American presidential politics. After all, America elected George W. Bush as president . . . twice.

 

This article is not intended to be, nor should it be considered to be, legal advice. If you have a legal question or other matter related to the any of the topics discussed in this article, I strongly urge you to contact our office at the number below or seek the counsel of another qualified and experienced adult entertainment attorney familiar with the legal matters discussed in this article.

 

1Gregory A. Piccionelli is an intellectual property attorney specializing in adult entertainment matters. He can be reached at Piccionelli & Sarno at (818) 201-3955 or greg@piccionellisarno.com.

 

 

 

 

 

 

 

 

 

 

 

 

 

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