FSC Files Opening Brief to U.S. Appeals Court Over 2257

Rhett Pardon
DENVER — The Free Speech Coalition filed its opening brief to the 10th U.S. Circuit Court of Appeals in its attempt to challenge a lower federal court’s opinion relative to a preliminary injunction against new federal labeling and record-keeping regulations targeting the adult industry.

In late December, the U.S. District Court in Denver granted in part and denied in part the preliminary injunction that halts enforcement of several amended rules relative to U.S.C. 18 § 2257.

The order sustained the FSC’s argument that the inclusion of “secondary producers” in the accompanying regulations violated a previous 10th Circuit ruling — Sundance Associates Inc. vs. Reno, 139 F.3d 804 (10th Circuit, 1998) — and other aspects of the organizations’ contention that 2257 imposes undue burdens on speech, but otherwise denied their claim that 2257 is unconstitutional.

In the 30-page brief filed Wednesday, the FSC is asking the court whether 2257 “is facially unconstitutional under the 1st Amendment.”

FSC attorneys are requesting the 10th Circuit to hear oral arguments in the case.

“[The new rules] permit the government to criminalize the dissemination of protected expression without proving, as would otherwise be its burden, that the underlying speech itself is unlawful,” the FSC said in its appeal. “This impermissibly alters the constitutional protection afforded all non-obscene sexual expression containing adults and therefore violates the 1st Amendment. The district court accordingly erred in rejecting appellant’s motion for preliminary injunction on this ground.”

The FSC's lead attorney in the case, Michael W. Gross, told XBIZ that the organization “is trying for the knock-out punch.”

“We’re essentially focusing on the 1st Amendment issues of 2257 with the 10th Circuit and saving the regulatory issues for the [U.S. District Court],” said Gross, who noted that the government has 30 days to reply to the opening brief filed Wednesday.

Gross said that if the 10th Circuit approves oral arguments, the appeal could be heard as early as fall. In the meantime, the U.S. District Court case continues.

The FSC filed suit last year 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 to be argued at the 10th Circuit is Free Speech Coalition vs. Alberto Gonzales, Nos. 06-1044, 06-1073.