Free Speech Attorneys Lash Out Over New 2257 Rules

Rhett Pardon
WOODLAND HILLS, Calif. — Free speech attorneys lashed out against the Justice Department’s new labeling and record keeping law Thursday evening at the Free Speech Coalition’s quarterly meeting.

Nearly 75 adult business professionals attended the event that included dialogue over new federal rules for adult content and products.

The rules, known officially as 18 U.S.C. § 2257, would be certain to put a crimp in business practices for websites, producers, adult retailers, novelty makers and web-based and traditional mail order companies.

The attorneys — Jeffrey J. Douglas, a Santa Monica, Calif.-based sole practitioner; Reed Lee of Chicago’s Obenberger & Associates; and Encino, Calif.’s Allan B. Gelbard — said the new rules announced this week are so unclear and ambiguous that they represent a potentially catastrophic minefield for adult companies, which would have to hold on to the records for seven years.

Amendments to 2257 were drafted in order to update record keeping and inspection requirements adopted in 1994 for the purposes set by Congress in enacting the Child Protection and Obscenity Enforcement Act.

“[The Justice Department’s] rationale behind the rules is that every picture or video you take is child porn,” Douglas said. “Ultimately, we can’t live with this. The 2257 new rules need to be destroyed.

"The new rules take time to digest. With every [legal] answer I give, there’s a big asterisk.”

Within moments of their introductions at the meeting at the Marriott in Woodland Hills, Calif., the attorneys launched into an outline of what the new rules mean for the following businesses before being peppered with questions by the standing-room-only audience:

WEBSITES

— Live chat sites are now subject to 2257. Performers must fill out declaration with legal name birth date, aliases, ID type and serial number, all of which must be countersigned by adult webmasters.

— New regulations require a copy of every performance that includes live streaming.

Douglas said that that requirement would be byte-heavy. “We did a study on streaming video for the seven-year requirement,” he said. “We found it would average 500 terabytes of information.”

— Nonoriginal content also must be backed up by requirements.

“Even if you take down a site, you could still be in violation,” Gelbard said. “It might be easier to defend; you have to figure a risk-benefit analysis — but none of us know what is going to happen.”

— Labeling requirements for websites must include separate custodian names, addresses and dates of productions. Labeling must be in a typeface pointsize that is as large as the performer’s credit.

Douglas noted that “every new day you change your website, that is the date of record,” meaning the actors grow older with every site change, defeating the purpose of the regulation.

And one more interesting question is a depicted image’s retroactivity. “I suspect they will use [the maneuver],” Reed said.

PRODUCERS AND ADULT NOVELTY MANUFACTURERS

— New regulations require that a copy of the recording, including the video, DVD, box and catalog must be kept in a 2257 file.

— New requirements require most adult companies to make available for inspection Monday through Saturday, 8 a.m. to 6 p.m., all indexing that allows searches by name of video or product and last legal name or aliases of performer.

— Copies of 2257 declarations and identifications to any “secondary producers.” This would also include explicit box covers sold by distributors, either through the web or mail order.

WEB-BASED OR TRADITIONAL MAIL ORDER COMPANIES

— Any sales promotion, print or on the web, would have to include 2257 declarations, which include legal company or sole proprietor names, as well as street address.

— Those companies must create and indexing system, accessible by the production or catalog title, performer’s name (including aliases, married or maiden name), declared by the producer that sold you the product.

ADULT RETAILERS

— Any packaging that depicts sexually explicit activity must be labeled with legal name of person, custodian’s street address and date of production easily readable for the viewer.

— Packaging means 900-number ads on videos for sale rent or shown at adult arcades.

Despite all the gloom and doom painted at the FSC meeting, the attorneys said that there is a good chance that the new rules might not hold up in federal court.

The FSC said it would challenge new 2257 rules in U.S. District Court in two regions, one on the West Coast and one on the East Coast.

Lee, an FSC board member, would not disclose which federal courts but told XBiz that it would seek an temporary restraining order and a preliminary injunction against the rules before June 23, when the rules are set to take effect and exactly one month after the new rules were published in the Federal Register.

“The Justice Department doesn’t care about freedom of speech,” said Reed, who noted that physical inspections at adult companies would likely pose a dilemma.

“There is no doubt that the Justice Department will take advantage of the plain view doctrine,” which allows authorities to take in consideration other evidence at an adult business office. “It is very clear — they want to see what else you have in your office.”

Douglas, also an FSC board member, said that two possible scenarios could include specific and routine searches if the rules one by one aren’t quashed in federal court.

“If they ask for your records, my advice for you is to be professional, detached and make sure you keep the records locked and secure in a room where they can go through them,” Douglas said. “You want to give them a nice closet.

“An inspection, however, will not result in an arrest, no matter how fucked up you are," he said. But remember, “these people have guns.”