“Our immediate reaction is that the ruling deals a substantial and welcome blow to the government’s regulatory scheme,” FSC Communications Director Tom Hymes said of the ruling.
The 29-page decision is a victory for the FSC and its more than 750 members as U.S. District Court Judge Walker D. Miller said that some of the amended rules were overly broad in their application to websites beyond producers' control and live video feeds.
"Clearly there is a great public interest in preventing child pornography," Miller wrote. "However, [the government] must act within the scope of the his lawful authority in doing so, and [the FSC and its members] argue convincingly that his application of the regulations to all secondary producers is outside that authority."
With the preliminary injunction for secondary producers, Miller followed the 10th U.S. Circuit Court of Appeal's decision in Sundance Associates Inc. vs. Reno, 139 F.3d 804, 805. That ruling created a bright line between producers and secondary producers; it also ruled that secondary producers are not required to maintain records in the same manner as primary producers.
Miller also said that the amended rules provided an unnecessary burden for operators of live video feeds. The FSC said that in order to comply with new record-keeping rules, operators would have to record an extraordinary amount of material that could reach up to 1 quadrillion bytes on an annual basis, costing each company $15 million annually.
"[There is] a substantial likelihood that the regulation is not narrowly tailored with regard to chat rooms since it may well burden substantially more speech than is necessary to further the government’s legitimate interest," he said.
Miller, however, said that the FSC hadn’t demonstrated a substantial likelihood of success in demonstrating that other portions of amended rules create an undue burden, "with the exception of [rules] applied to [live video feeds] and [regulations] applied beyond websites controlled by the producer."
“What can be stated without reservation, and about which we are clearly pleased, is that the ruling enjoins the secondary producer provision of the regulations.” Hymes said.
But Hymes noted that “independent of any future FSC analysis, we caution all members and nonmembers who may be affected by this ruling to seek legal advice about how to respond to this ruling.”
Miller’s decision could open what one industry attorney called “a dangerous path” and that it was a mixed bag for the industry. The attorney, speaking with anonymity, told XBiz that Miller “didn’t buy that pornography is constitutionally protected speech.”
The FSC filed suit in June at U.S. District Court in Denver seeking to enjoin enforcement of 2257’s new rules.
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. They 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. Another plaintiff is David Connors of San Diego, owner of about 600 adult 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.
Wednesday's ruling is expected to be appealed by the Justice Department to the 10th Circuit.
The case is Free Speech Coalition vs. Alberto Gonzales, No. 05 CV 1126 WDM.
