THE IMAGE you see below was the first page of my biography at my website, TomBianchi.com. for the last seven years. This short version of my life from birth to graduation from law school told what I saw as most relevant about who I am. Recently, the company that provides banking services to my site (they collect membership subscriptions) informed me that this was a picture of an underage person and had to be removed. A law known as 18 U.S.C. 2257 has made companies like my banking agent the censoring instruments of the State. I was told that any representation of any kind of a minor is banned if it is associated with an “adult” site. Period. Since I talk about sex in my work, 2257 requires me to keep the photo ID files at an address made public to the world, which in my case is my home. The FBI can come into my house during what it considers “normal business hours” to see if I have the required records for all the men I’ve photographed. So I card even men over forty years of age and take their picture for the FBI. I’m instructed to stay at home during these “business hours” so the FBI can drop by at its convenience. Statute 2257 was originally passed in 1988 as the Child Protection and Obscenity Enforcement Act of 1988, which put forth a set of record-keeping requirements for anyone producing sexually explicit material to ensure that no minors were involved in its manufacture. The law set up a distinction between a “primary” and a “secondary” producer, with the latter a catch-all that included anyone who assembled or published or distributed such material—basically everyone except those who were there at the shoot. This law was greatly expanded by Bush’s protect Act of 2003, which directed the Attorney General—at the time John Ashcroft—to enforce 2257 more aggressively. Of course, Ashcroft got right to work and, among other things, turned the old law’s record-keeping requirements into an instrument of Big Brother. Now even secondary producers, such as distributors, Internet service providers, and publishers, were subject to these requirements—and guilty of a federal offense if unable to produce the required documents. The effect has been to make these collateral businesses sufficiently worried about their own vulnerability that they have become censors, agents of the State. Publishers, distributors, and Internet service providers, fearing that the law’s onerous provisions might apply to them, have all been made agents of the thought police. The bank executive who formulated the policy told me that there was no way he could examine the reasonableness of my case. If he did that, the floodgates would open. Anyone his company serves could ask, “Do I lose the right of free speech because you can’t figure out how to make sense of the law?” It would be a nightmare. He certainly couldn’t hire enough smart people to analyze our cases intelligently. I heard pain in his voice. “What do you want us to do? Go up against Visa?” The Free Speech Coalition, led by Santa Monica-based attorney Jeffrey J. Douglas, has challenged this law and gotten portions of it suspended for some of its members. But in recent months the FBI has been active in California, going to the offices of the producers of adult entertainment to see if they’re complying with the law. They haven’t found any evidence of children being exploited by the companies they’ve invaded. The problem for an artist like myself is that, however obvious it may be that my work is nowhere near what they are looking for, I get censored anyway by the chilling effect they have upon the companies that I deal with. The recent ban of this picture of Jared and me (respectively, 55 and sixty years of age) at the BigMuscle website illustrates another problem with the censorship that’s been forced on us in order to accommodate 2257. But then they removed it because, confounded by the law, they had hired someone who combs members’ profiles for a living, looking for “forbidden” material. They cannot agree among themselves what violates their own policies related to 2257. Originally I was told that the picture was okay because it didn’t “show anything.” But then I was told that it was banned because something could be happening outside the picture that might violate their policy. They couldn’t tell. In a psychedelic leap into the unknown, they now censor what they imagine might be happening outside the frame. If a particular censor imagines something forbidden, the artist has committed a transgression. It’s a new kind of thought crime. The Supreme Court wisely gave up trying to micromanage free speech about sex decades ago precisely because so much of that censorship created outcomes as absurd as the ones I speak of here. But now, the inanities of the past have returned through the back door. I have some sympathy for these lay censors. Their task is vast and the rules designed to guide them are barely coherent. They have neither legal training nor an understanding of the First Amendment, so when we turn these private citizens into censors, we find ourselves with a situation that verges on farce. Not to venture into the whole torturous maze of what’s kosher and what’s not in this regulated world, here’s an example of something that didn’t make the cut. You can post a picture of yourself nude, even nude with an erection. (How is this not sexual? Maybe they’re thinking about the spontaneous erections that adolescent males get in Sunday School.) However, touching your genitals with your hands is forbidden—unless your hands completely cover your genitals in whatever state they may be in. (Is the underlying assumption here that if one’s erection is small enough to hide with one’s hand, the viewer is more likely to feel sympathy than lust?) To return to the case of my book cover photo, the reader might object that we’re just being paranoid: what law enforcement official would be so stupid or vindictive as to claim that 2257 applies to my case? I agree. And yet, we have a government in Washington whose former attorney general paid $6,000 to cover the naked breasts of a sculpture of Lady Liberty at the Department of Justice just a few years ago. The abuse of censorship laws by prosecutors is not a matter of speculation: I’ve seen it happen firsthand. At Northwestern University, where I got my law degree in 1970, the professor who lectured on the First Amendment was Jim Thompson. He was also a prosecuting attorney for the state who later became governor of Illinois. Shortly after our graduation, he used his prosecutorial power to shut down a gay movie house. When a fellow (gay) classmate and I ran into him in a restaurant in the midst of these reports, we asked him how he justified that. An able teacher, he had taught us that such prosecutions were prohibited by the Constitution. When we reminded Professor Thompson what he’d taught us, he smiled and said that, as a Republican, he would just as soon stick it to Mayor Daley, a prominent Democrat. “Don’t you think I scored some political points?” he asked. We weren’t out enough to tell him that he was spoiling our entertainment, but we reminded him that it was our tax dollars he was misusing to further his political ambition. If you immediately see that the censorship of my picture in this case will not protect children from sexual exploitation, know that I agree. I support sane efforts to stop the sexual abuse of children. What 2257 does, however, is to force us to cut down an unconscionable number of trees to produce useless records while doing nothing to protect children. As is often the case these days, it provides politicians with the illusion that they’re doing “something,” while diverting us from looking for real solutions to problems. The most important problem with a law like 2257 is that it provides a diversion and cover for a society that institutionally abuses millions of its children sexually every day. An insidious homophobic agenda exists: governments and religious institutions use homophobia to maintain their power to the detriment of the mental, physical, and spiritual well-being of every gay person on the planet. This includes many gay people who happen to be minors—which is defined as eighteen for some purposes and sixteen for others under 2257—who are abused by the anti-gay messages they’re constantly getting as more and more states amend their constitutions to ban same-sex marriage, fundamentalist Christians condemn GLBT people from the pulpit, and right-wing commentators daily rail against gay people on 24/7 talk radio. If they really wanted to protect children from sexual abuse, they could pass a law under the “yelling ‘Fire!’ in a crowded theater” exception to the First Amendment and prosecute the exploitation of homophobia by these people. Of course, that would mean going after people like former Massachusetts governor Mitt Romney, the former Pennsylvania senator Rick Santorum, and Bush and Company, too. Tom Bianchi’s most recent book are Deep Sex and On the Couch Vol. 2, both published by Bruno Gmünder.
The law requires me, among other things, to keep photo IDs of anyone I shoot on file (together with myriad other data) and place statements that I am in compliance with the law in my work. The law is intended to require me to prove that I am not abusing children, I think. But rather than frontally dealing with that issue, it has created a body of laymen censors who restrict speech—speech that unquestionably is protected by the Constitution—as they attempt to interpret an incomprehensible set of rules under a draconian law.
This is the cover shot on my newest book, Deep Sex. You can see this photo displayed in the windows and on the counters of bookstores throughout the world. Where you cannot see it is in my profile at BigMuscle. Actually, for about five months, you could see it there—after I had specifically cleared it with the site’s owners.
