Adult Industry Attorneys Respond to FBI 2257 Comments

Q Boyer
LOS ANGELES — Adult industry attorneys responded with cautious optimism to statements made by the head of the FBI’s 2257 inspection team this week, saying that while his comments are not definitive, they are consistent with federal policy and previous statements of other government officials on the subject.

In an interview with XBIZ this week, Special Agent Chuck Joyner said that the FBI will not knowingly inspect secondary producers until the revised regulations proposed in July take effect.

“We do not inspect secondary producers,” Joyner said. “On a few inspections, we determined the company was a primary producer for the majority of the products we reviewed. However, some of the products reviewed were produced by a separate company and the company inspected was the secondary producer or distributor. In those instances, we did not review any records for products determined to be produced by another company.”

Attorney Jeffrey Douglas, chairman of the Free Speech Coalition, told XBIZ that he had received similar assurances from the fourth highest-ranking officer of the FBI at the meeting that took place between members of the adult industry and the FBI in Washington last month.

“The only problem lies in the FBI’s definition of secondary producer,” Douglas told XBIZ, adding that producers who label their content with a custodian of records statement indicating that they maintain records might be considered a primary producer by the FBI, even if they technically do not qualify as such.

Douglas said, however, that the question of whether the FBI might show up to inspect a secondary producer based on such a label, the question of whether the Justice Department would initiate a prosecution based on such an inspection is an entirely different matter.

“It is not a question of just some low-level official saying ‘We aren’t going to inspect secondary producers until the regulations change,’ it is a fundamental issue of law,” Douglas said. “A proposed regulation is just a breath of wind, it is just an idea. I don’t think you can find a single, solitary lawyer who could conceive of a regulatory agency acting on a proposed regulation — any manner of regulation, not just 2257 — until such regulations have the force of law behind them.”

Douglas said that Joyner’s statement was “consistent with everything” that has been communicated by high ranking officials both from the FBI and Justice Department, as well as the statements made in the preface to the revised regulations proposed by the Justice Department in July.

Attorney Larry Walters concurred with Douglas for the most part, but added that while Joyner’s comments made sense and that waiting for the new regulations to come into effect would be “typical of regulatory agencies, generally,” Joyner’s comments should not be taken as the final word on the question.

“Joyner is not a policy maker, and he cannot set policy,” Walters said. “People in this industry should know by now that an individual’s statement is only as good as their word that day — they can be replaced, or there can be a change in policy from above.”

Walters said it is also important to note that the “position of the Justice Department is that secondary producers have always been required to maintain records.”

“From the Justice Department’s perspective, the Adam Walsh Act just made it clear that the regulations apply to secondary producers,” Walters said. “Their official position is that secondary producers have always been required to maintain the records.”

Attorney Reed Lee, a member of the FSC’s litigation team in its challenge to 2257 and current president of the 1st Amendment Lawyers Association, told XBIZ that while there are reasonable caveats that one must keep in mind, “there is reason to believe that Joyner knows of what he speaks with regards to the FBI’s inspection policies.”

“Joyner has established a fair degree of credibility as someone who is trying to cultivate good relations with the community that he is inspecting,” Lee said.

Lee echoed Walters’ words of caution, however, and stated that Joyner’s credibility and forthrightness “doesn’t mean that he speaks for the people at the Justice Department.”

“The Justice Department is a big place with many people in it, and it does not always speak with one voice,” Lee said.

Lee also agreed with Douglas that the FBI’s interpretation of what constitutes a “secondary producer” does not necessarily match the definition of that term under the statute.

“Even if Joyner is being totally honest and forthright in saying ‘we are not inspecting secondary producers,’ they go by what’s on the label,” Lee said. “Since many secondary producers have been complying in good faith, and labeling their products with the required custodian of records statement, this does present the inspection team with some factual issues that are difficult for them to determine.”

Ultimately, Lee said, some issues surrounding 2257 likely will not be settled by any means other than litigation.

“Absent Congress sitting down and fundamentally rethinking section 2257, further litigation is almost inevitable,” Lee said. “It likely will be several years before we have answers on some of this.”