educational

2257: A Temporary Truce: 1

Gregory A. Piccionelli
On June 23, the Free Speech Coalition and the other plaintiffs in the case of Free Speech Coalition et al. vs. Alberto Gonzales won the first skirmish of the 2257 wars. The victory provided a temporary, but effective, 2257 "enforcement shield" to members of the FSC in good standing as of June 25.

In this article I will address who and what the agreement covers, what you can do if you did not join the FSC in time and what to expect next.

On June 17, the FSC and others filed a federal law suit in Denver challenging the federal record-keeping and labeling laws set forth at 18 U.S.C. § 2257 and 28 CFR Part 75 et seq. The plaintiffs also petitioned the court for a temporary restraining order to prevent the government from enforcing the "2257 regulations" against them, and in the case of the FSC, the organization's members.

In lieu of adjudicating the plaintiffs' motion for a restraining order, on June 23, the parties entered into a stipulation (essentially a court-approved agreement) by which the government agreed not to enforce the 2257 regulations against the plaintiffs for a limited time, pending the outcome of a preliminary injunction hearing.

Specifically, the Justice Department agreed that the government would not pursue any 2257 claims or conduct any 2257 inspections with respect to the plaintiffs or any FSC members until either the date the court rules on a preliminary injunction motion (soon to be filed by the plaintiffs) or 30 days after the date of the hearing for the preliminary injunction, whichever is earlier. The hearing is currently scheduled for Aug. 1-2.

The agreement also prevents the government from obtaining the names of FSC's members, which will remain under seal. Instead, the government will be required to "consult with the special master before conducting any inspections under 18 U.S.C. § 2257 and its implementing regulations, in order to ensure that such inspection would not involve a member of the Free Speech Coalition Inc." The agreement is clearly great news for FSC members in good standing as of the June 25 cutoff date set forth in the stipulation.

Unfortunately, parties subject to the 2257 laws that failed to respond to the urgent and frequent calls by the FSC and many industry attorneys to join the FSC are now vulnerable to prosecution under the newly amended 2257 regulations that went into effect last month. As such, it is also likely that at least a few industry attorneys will soon be counseling clients who are subject to the stipulation to exercise heightened caution in evaluating new or even ongoing relationships with parties that are not subject to the agreement.

But even FSC members in good standing should be aware that the government's promise of restraint is not a license to violate the regulations. The stipulation also cautions that "[t]he government takes the position that the regulations codified at 28 CFR, part 75 et seq., [sic] are in effect as of June 23, and reserves the right, after the expiration of this agreement or the denial of a preliminary injunction, to prosecute or otherwise commence enforcement proceedings with respect to any violation that occurs on or after June 23 (including any violation that may occur during the period of this agreement)."

What's Next
The FSC legal team will next file a motion for a preliminary injunction asking the court to prevent the government's enforcement against the plaintiffs (and the FSC membership) throughout the rest of the litigation. If the court issues the injunction, it could be even better news for the plaintiffs and FSC membership than the current stipulation as the restraint upon governmental enforcement imposed by a preliminary injunction could last several years. A similar injunction in effect since 1999 has prevented the government from enforcing the Child Online Protection Act (COPA) pending the resolution of the constitutional challenge to that law.

The FSC attorneys will also soon file an amended complaint to include additional arguments in support of our claims that 2257 is fundamentally unconstitutional. For example, you may be surprised to learn that the elaborate record keeping and labeling regime, while seeming to impose every imaginable burden on content producers, fails to require that the content producers record the date of creation of the content. In fact, inclusion of that data in the records would now be a crime under the new regulations! This is significant because, along with the performer's date of birth, the date of creation of the material would be necessary for the 2257 regime to assist the government in quickly determining whether the material contains a depiction of an underage person, one of the alleged purposes of the law justifying the burdens imposed. Without a date of creation requirement, the whole 2257 regime imposes an extraordinary burden on free speech and privacy rights without the justification of furthering the governmental interest of protecting children by enabling the government to more quickly identify child pornography and remove it from circulation than by traditional child pornography prosecutions alone.

FSC Still Wants You
If you are in the adult entertainment business and you are not yet a member of the FSC, you are doing yourself a real disservice. It is a mistake, which could result in even greater negative consequences than exclusion from the group of parties the government has promised not to currently prosecute.

For example, there is a reasonable chance that we will be successful in convincing the court that many parts of the 2257 regulations are probably unconstitutional and should be enjoined until the matter is completely litigated. If the court orders such an injunction, it is also possible that the court may allow an expanded FSC membership to be covered by the ruling.

The government will almost certainly oppose any such request by the FSC and will argue, as they did in regard to the current stipulation, that any expansion of the class of members protected from enforcement should be limited. Consequently, while there is no guarantee that joining the FSC after June 25 will ever bring you within a class protected from 2257 enforcement, it almost certainly is the case that the longer you wait to join, the less likely you will be included in an expanded protected class should one be allowed.

In part two, we'll look at "the 11th Commandment," and colorful language.

Gregory A. Piccionelli is one of the world's most experienced Internet and adult entertainment attorneys. He is also a member of the Free Speech Coalition Legal and Government Affairs Committee. He can be reached at Piccionelli & Sarno at (310) 553-3375 or www.piccionellisarno.com.

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