FSC Files Appeal to 10th Circuit Over 2257 Preliminary Injunction Issues

Rhett Pardon
DENVER — In an apparent bid to bolster its case for permanent injunction, the Free Speech Coalition has filed an appeal with the 10th U.S. Circuit Court of Appeals on several issues relating to last month’s preliminary injunction on new federal labeling and record-keeping regulations targeting the adult industry.

In late December, the U.S. District Court in Denver granted a preliminary injunction in the Free Speech Coalition’s bid to halt enforcement of several amended rules relative to U.S.C. 18 § 2257. That case continues, with various court dates in the next coming months and a pretrial hearing in August.

“In the appeal to the 10th Circuit, we’re essentially appealing 1st Amendment issues — whether the strict scrutiny law or the intermediate scrutiny [test is applicable to the record-keeping law in regards to secondary producers],” attorney Michael W. Gross told XBiz late Monday. "Our position is that this is content-based law.”

Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue; intermediate scrutiny is met if a regulation involves important governmental interests that are furthered by substantially related means.

“This constitutional test [over some of the 1st Amendment issues of 2257] hasn’t been before the 10th Circuit before,” Gross said.

In related news, the FSC last week posted a $10,000 bond with the federal court while the preliminary injunction is upheld during litigation.

Last month’s decision in U.S. District Court was a victory for the FSC and its more than 750 members as 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.

With the preliminary injunction for secondary producers, Miller followed the 10th Circuit'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," Miller 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."

The FSC filed suit in June at U.S. District Court 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.

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