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I don't think you're off base to be concerned about the possibility of legislators moving to make use of .XXX by adult sites mandatory under US law. There was at least one bill that never made it to the floor last session which proposed precisely that, and such a bill may very well be revived by the current Congress.
It's also true that any attempt to force use of .XXX would be very ripe for legal challenge, both in the US and in any number of foreign jurisdictions.
ICM Registry retained Robert Corn-Revere, a very prominent attorney with vast experience in First Amendment related issues, to compose a white paper arguing, in essence, that it would be facially unconstitutional to mandate .xxx use.
I'm not qualified to rebut or concur with Corn-Revere's analysis, personally, but I will say that several other legal experts I have discussed the issue with are nowhere near as certain that it would be impossible for Congress to foist such a requirement on US-based webmasters/companies.
Obviously, the answer is largely dependent the specific statutory language that such a law (one mandating use of .XXX) might include.
A few "for instances":
Would such a law be limited in its scope to material that to which 2257 applies? If so, would sites that include "simulated sexually explicit content" be required to move to .XXX as well, in light of the new section 2257A created under the Adam Walsh Act?
Would the law seek to relegate all sites and/or advertising that deals with "materials harmful to minors" to .XXX, or would it be limited to sexually explicit material that is "harmful to minors"?
Unfortunately, my hunch is that we will find out the answers to these and other .XXX-related questions the hard way; IMO some iteration of ICM's contract eventually will be approved by ICANN, whether it is the current version or some future version.
Following that approval, doubtless some in Congress, both Democrat and Republican, will push for mandatory .XXX use (in/for US-based operations), and such a measure will likely pass. I base that assumption on the notion that it is always a "political winner" to pass legislation that purports to protect children, no matter how unlikely it is that such legislation will have any impact whatsoever on the safety of children.
The question is, can Congress compose a law that is sufficiently narrow and well-defined that it will stand up to challenge, or will they (as they often do) knock out a vague, ill-defined law that seeks to effectively quarantine a lot of expression that isn't even vaguely "pornographic" or "obscene"?
Like I said, were I a betting man (something I'm no longer allowed to be over the Internet, strangely, but can still be at my neighborhood Circle K, any time I wish) I would bet that the Courts will get the chance to examine such questions themselves, eventually.
- Q.
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Q. Boyer
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