The FSC, which also is appealing several issues to the 10th U.S. Circuit Court of Appeals relating to its preliminary injunction, reiterated its original case to U.S. District Court in Denver, saying that the “government’s arguments … are erroneous and should be rejected.”
The FSC’s 38-page response in opposition to a summary judgment addresses six points of contention, including vagueness and overbreadth of new language under U.S.C. 18 § 2257 as well as 1st Amendments issues.
The filing also addresses the possibility of the new rules violating the 5th Amendment relative to due process.
“In the context of obscenity, the maintenance of § 2257 records is itself an admission of wrongdoing, for it is only those individuals and entities who create and publish the sexually explicit material at issue that are required to maintain records,” the FSC said. “Therefore, the fact that an entity has § 2257 records for a particular work is a concession that the entity was involved in its distribution.
“Given these concerns, coupled with the fact that § 2257 imposes criminal liability on violators and the government’s recent attacks on the adult industry, § 2257 violates the 5th Amendment.”
The FSC also addressed the government’s contention that data maintained in producer’s records would not be helpful in an obscenity prosecution.
“[But] this overly simplistic argument ignores the realities of what § 2257 requires,” the FSC said. “Because the record-keeping requirement is triggered when sexually explicit material is produced, and not when it is disseminated, it is possible that the government would be exposed to a nonpublished work for the first time on inspection, thereby increasing the likelihood of an obscenity prosecution for works that were created but not published.
The FSC said “there are serious questions whether the challenged provisions are narrowly tailored to serve the government interest,” and that already there is evidence that numerous producers and websites have reduced their speech in response to the newly enacted regulations.
The case is Free Speech Coalition vs. Alberto Gonzales, No. 05 CV 1126 WDM.
