H.R. 3726 unduly infringes on our First Amendment right to free
expression and includes vague, broad and bizarre language that would
further call into question the constitutionality and viability of the
statute, already the subject of a court challenge.

Currently, 18 USC §2257 requires producers of sexually explicit
material to keep records documenting the names and ages, among other
information, of performers participating in visual depictions of
actual sexual conduct.  H.R. 3726 amends the record-keeping
requirements of 18 U.S.C. §2257 by expanding the definitions of
"sexually explicit conduct" and "produces," and
extending the statute to include "simulated" conduct.

The proposed revisions are so overly broad and vague that the statute
is certain to face constitutional challenges if adopted.  For example,
the revisions include a new definition of "producer" which
would require those who have no ability to verify the age of the
performers to do so  such as a person who downloads a drawing of the
human body onto his or her computer.

Also included in H.R. 3726 is a new definition of "sexually
explicit conduct" that incorporates "lascivious" nudity
and "simulated" sex.  The new definitions would place many
popular R-rated movies under the scope of this law.  In addition,
"lascivious" can be broadly interpreted, which would make
the law vague and ambiguous.

The courts have ruled that "laws [must] give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly."  When a law
interferes with the right of free speech, the courts more vigorously
apply the vagueness test.

The revisions also contain bizarre language that would require
producers of drawings and/or digitally created images to keep records
of the "performers" depicted in those drawing and/or images
even if those "performers" are the creation of artists.
Digital images created without the benefit of live performers are
protected under the First Amendment.  Because an artist could be
jailed for failure to keep records of a performer that exists only in
a digital context, the bill sweeps far more broadly than necessary and
infringes upon protected speech.

In addition, H.R. 3726 allows for forfeiture of all property covered
by §2257 for a single administrative error in the record-keeping, even
if all of the remaining depictions are entirely legal and in full
compliance with the law.  This places this provision at odds with the
Eighth Amendment prohibition against excessive fines.

Proposed changes to obscenity laws are equally problematic. Despite
the fact that a determination of "obscenity" relies on the
community standard in which the matter was distributed, H.R. 3726
would criminalize the production of obscenity, which amounts to prior
restraint on speech in violation of federal law.

H.R. 3726 also prohibits attorneys in child pornography cases from
obtaining the alleged child pornography, potentially depriving
defendants of due process by denying them a fair trial.

Whenever Congress moves to limit our First Amendment freedom of
expression we risk sliding down a very slippery slope of censorship,
or self-censorship, of protected expression. Under H.R. 3726, which
clearly places undue burdens on constitutionally protected speech, we
are headed down that slippery slope.

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