Justice Department Files Motion to Dismiss FSC’s 2257 Case

Rhett Pardon
DENVER, Colo. – The Justice Department has filed a motion to dismiss the Free Speech Coalition’s suit challenging new regulations to 18 U.S.C. § 2257, the federal record-keeping law and labeling requirements for the adult industry.

In related news, a temporary restraining order against enforcement of the revised regulations is set to sunset on Friday. If the FSC is granted an extension of the TRO, it would be the fifth such extension since it challenged the amended rules in June.

Tom Hymes, communications director for the FSC, told XBiz Tuesday that although he hasn’t seen the latest court documents, he wasn’t surprised of the filing. “They want a decision, and so do we,” Hymes said.

The government’s motion, delivered electronically to the court late Thursday, said that the FSC’s 32-count challenge to the amended rules and its implementing regulations should be dismissed through summary judgment.

“Plaintiffs’ claims include a 1st Amendment challenge that two courts of appeals have already rejected, and over 10 unavailing constitutional vagueness claims that feign mystification over the meaning of such terms as ‘homepage,’ “ Justice Department attorneys wrote.

“Further, plaintiffs erroneously assert that a right to privacy in basic driver’s license information of individuals who have sex for money on camera trumps basic protections designed to protect children from sexual exploitation.”

Additionally, Justice Department attorneys refuted that the amended rules relative to inspections violate the 4th Amendment (search and seizure) and 5th Amendment (rights of persons).

“Not content to challenge the regulations as they are, plaintiffs also assail provisions that do not exist and erroneously challenge other regulations as [beyond the power of the federal government],” the Justice Department said.

In the filing, the Justice Department claims that the federal court, which is deciding the case, also lacks jurisdiction to consider many of the claims that they raise, including their claims related to privacy and the 5th Amendment.

“The challenge, at a minimum, is unripe because plaintiffs have not established that any plaintiff’s speech was unduly burdened by this requirement at the time plaintiffs filed their amended complaint,” the Justice Department wrote. “The regulation balances the interests of producers with the [Justice]Department’s interest in requiring the maintenance of records for a period commensurate with the increased child pornography statute of limitations.”

The FSC filed suit in June at U.S. District Court in Denver seeking to enjoin enforcement of 2257’s new rules, which would be certain to put a crimp in business practices for adult websites, producers, retailers, novelty makers and web-based and traditional mail order companies.

The new regulations require producers to keep detailed information to verify the identity and age of their performers, including date of birth, legal name and a copy of a photo identification card.

The new rules apply to adult material dating to July 3, 1995. Violators face up to five years in prison for a first offense and 10 years for subsequent violations.

Plaintiffs to the suit include the Canoga Park, Calif.-based FSC; the FSC's Littleton, Colo., chapter; adult distributor New Beginnings Ltd. of Sylmar, Calif.; and New Beginnings owner Leonard Friedlander, who is one of the founders of the FSC.

Another plaintiff is David Connors of San Diego, owner of about 600 adult sites — including the “OnDemand” series of sites — and producer of 41 adult videos under the Dave Cummings Production label.

The suit by attorneys representing three law firms — Denver-based Schwartz & Goldberg’ Sirkin, Pinales & Schwartz of Cincinnati, Ohio; and Buffalo, N.Y.-based law firm Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria — argues that the guidelines are an unconstitutional burden and would do little to protect children.

The case is Free Speech Coalition vs. Alberto Gonzales, No. 05 CV 1126 WDM.