FSC 2257 Appeal to Be Heard By 10th Circuit

Gretchen Gallen
DENVER – The 10th U.S. Circuit Court of Appeals agreed today to hear the Free Speech Coalition’s appeal on several issues relating to last month’s preliminary injunction in the case FSC vs. Gonzales, a lawsuit seeking to halt new federal labeling and record-keeping regulations targeting the adult industry, in particular, FSC members.

FSC attorney Michael Gross, of Schwartz & Goldberg, told XBiz the appeal is just one of many stages in what could be a very lengthy lawsuit involving the technicalities of the Internet combined with the overly burdensome aspects many website operators face in complying U.S.C. 18 § 2257 record-keeping laws.

“One component of the challenge [in FSC vs. Gonzales] is that generally all speech is protected by the constitution, and what 2257 does is it turns that presumption upside down, and you have to go out and prove you have a record that it [the content] isn’t child pornography and that you’re not a criminal,” Gross said.

The appeal was docketed today on the heels of a Jan. 27 filing that addressed whether the strict scrutiny law or the intermediate scrutiny test is applicable to 2257 in regards to secondary producers.

The FSC and its attorneys have taken the firm position that this is content-based law and are eager to argue this point, which Gross said has never before been brought before the 10th Circuit.

At this stage in the case, the FSC defense team will file a docketing statement, which spells out for the court what the case is about. Then the district court puts the record together for the appellate court to review, which Gross said could take between 30-90 days. After a few more steps in the process, the government is given a chance to respond, and it could be up to six months before anything comes of the FSC’s appeal.

“We now are putting 1st Amendment issues squarely before the court,” Gross said.

The FSC first filed suit against the Justice Department in June, seeking to enjoin enforcement of 2257’s new rules that require producers to keep detailed information verifying the identity and age of their performers, including date of birth, legal name and a copy of a photo identification card. The amended law applies 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 in 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.