U.S. Judge Dismisses Some of FSC’s 2257 Claims

Rhett Pardon
DENVER — The federal judge hearing the Free Speech Coalition’s case against the U.S. government over 18 U.S.C. §2257 has dismissed some of the adult industry’s claims.

U.S. District Judge Walker D. Miller dismissed all of the FSC’s claims with the exception of 2257’s new rules relative to Internet chat rooms and secondary producers, which include online adult companies that act as affiliates.

Miller also kept alive the FSC’s claim alleging the new rules are beyond the scope of the federal government and that they are retroactive.

Miller held that the government's actions "fairly supported" the regulation and granted a summary judgment motion, rejecting FSC's 1st Amendment challenge.

He also noted that the Adam Walsh Act had amended 2257, and that the 10th Circuit’s Sundance decision had been overruled by Congress.

Miller, however, upheld the domestic identification requirement for domestic production and adopted the government's interpretation regarding offshore production. He also kept intact the government's requirement on keeping copies of URL addresses relative to sexually explicit depictions.

Miller asked the FSC to show cause over the claims left in the suit by April 16.

FSC attorneys have identified and are working on a number of strategies to address Miller’s decision, FSC Board member Reed Lee said.

“While we are disappointed by Judge Miller’s ruling,” Lee said. “This case is far from over. There are a number of constitutional issues, previously appropriately avoided by Judge Miller that must now be addressed.”

The FSC filed suit in 2005 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.