FSC's New Challenge to 2257

Diane Duke
On Oct. 7, the Free Speech Coalition launched a lawsuit against the federal government challenging the constitutionality of 18 U.S.C. § 2257. If you are not an FSC member, don’t miss your opportunity to be included under the umbrella of this critical litigation.

Why Now?

On Dec. 18, 2008, the Justice Department published long awaited final” regulations required by the Adam Walsh Act, which amended 2257 and enacted 2257A and broadened 2257’s record keeping and labeling requirements. These regulations took effect on Jan. 20, and contained the finalized regulations implementing both 2257 and 2257A.

2257’s record keeping and labeling requirements have been dramatically expanded to apply to a vast amount of adult expression and apply to a vast number of persons who produce sexual imagery — both primary and secondary producers — including those who create the original images, those who digitize those images, those who insert such images on a computer or website, or those who publish them or re-publish them in a magazine, catalogue or brochure.

18 U.S.C. § 2257 is a criminal statute. Failure to comply with its provisions is punishable by a prison term of up to five years, a hefty fine, or both.

After the 6th U.S. Circuit Court of of Appeals found 2257 unconstitutional in Connection Distributing v. Holder, the FBI halted 2257 inspections. That decision was later overturned. Connection Distributing asked the Supreme Court to hear its appeal. On Oct. 5, the Supreme Court denied cert.

Why FSC?

FSC’s mission is to lead, protect and support the growth and well being of the adult entertainment industry. One component of that mission is to serve as a legal watchdog for the industry. As the adult entertainment industry’s trade association, through our membership, FSC is able to represent all sectors of the industry nationwide.

Through FSC’s filing of an injunction in its first challenge to 2257, the judge essentially struck down the secondary producer provision of the regulations. Congress moved in and changed the law to include secondary producers through the Adam Walsh Act, essentially rendering FSC’s injunction moot. FSC vacated that lawsuit without prejudice in order to challenge both 2257 and 2257A head-on.

Be Protected

FSC’s counsel, J. Michael Murray and his firm, Berkman, Gordon, Murray and DeVan have filed a constitutional challenge to 18 U.S.C. § 2257, 18 U.S.C. § 2257A and are seeking an injunction against those statutes and their implementing regulations. FSC will be joined in this lawsuit by an exceptional group of additional plaintiffs. In our previous litigation, the judge gave a two-week window to allow businesses to join FSC in order to be included under the injunction, and it saved those members thousands in the cost of compliance. There is no guarantee that the judge in this case will apply the same window.

If you want to be included in any potential injunctive relief under FSC’s 2257 litigation, make sure that you are an FSC member.

To join FSC and be included under the new lawsuit and injunction, contact FSC at (818) 348-9373, or email

If you have additional questions about FSC’s 2257 litigation call me at (818) 348-9373, or email diane@freespeech

By combining our resources and our efforts, the FSC, our members and the adult entertainment industry can and will strive to put the issue of 2257 to rest, once and for all.


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