FSC Inks Deal With Justice; Another Hearing in Aug.

Rhett Pardon
DENVER — The Free Speech Coalition entered into an agreement Thursday with the Justice Department to suspend enforcement of re-issued federal record-keeping and labeling requirements for FSC members.

U.S. District Court Judge Walker D. Miller signed the order after the FSC and Justice Department officials struck an 11th hour deal Wednesday afternoon.

A U.S. Attorneys Office source told XBiz that the parties will hold a preliminary injunction hearing on Aug. 8.

“This is good news for liberty, it is good news for freedom,” attorney J.D. Obenberger told XBiz. “I’ll be surprised if there will be any prosecutions between now and September.”

Under the deal with the Justice Department, authorities won’t conduct any inspections or pursue any claims to FSC members through Sept. 7, but the government reserves the right to inspect and prosecute companies that are not a plaintiff or FSC member.

According to the stipulation, the Justice Department will choose a special master — typically a retired judge — who will then check company names against a sealed and confidential FSC membership list. The special master will be appointed by the court, with the consent of the parties, and will be under a specific obligation to maintain the confidentiality of the FSC membership list.

A master list of members will be submitted to the special master on Wednesday and will include all FSC members as of 2 p.m. (PST) on Saturday.

FSC spokesman Tom Hymes told XBiz that he has "mixed feelings” about the deal but added that at no time will government regulators have direct access to the FSC membership list, which will remain under seal.

Obenberger said that he has strong feelings that the FSC might be granted a permanent injunction.

“You can’t put an economic barrier for the [small-time adult webmaster] who can’t afford to buy three servers just to record all of the streaming media of past adult content,” Obenberger said. “This would be unfair and against what the Supreme Court has said.”

The new regulations, still intact, 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.

The FSC lawsuit 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 — contained more than 20 claims.

In opposition to the FSC’s motion, government regulators said the adult industry trade group could not establish “imminent threat of irreparable harm.”

“[The] plaintiffs do not seek merely to enjoin certain new aspects of the regulations that they assert harm them. Instead, using the pending regulations as an entering wedge, plaintiffs ask this court to enjoin enforcement of the entire statutory and regulatory framework, which has been in place for well over a decade."

Justice attorneys pointed to one of the plaintiffs, Dave Connors, also known as Dave Cummings.

“[Connors] is an Internet pornography publisher who is capable of publishing tens of thousands of pornographic photographs on more than 600 websites, but who somehow lacks the ‘computer programming ability’ to store age-verification records electronically, or to hire someone to help him do so,” Justice Department attorneys wrote.

Justice attorneys also said that another plaintiff “is a pornography wholesaler who claims that the labeling requirements are excessively burdensome, even though he has been in business since 1986 and has been subject to the statute’s and regulations’ labeling requirements for more than a decade.”

“The only other assertions of harm come from a representative of the Free Speech Coalition describing purported burdens to unnamed businesses without identifying the harm, if any, that would occur in the limited period prior to a preliminary injunction hearing or a full hearing on the merits,” government regulators wrote.

In its argument, the FSC said that the new expanded rules are too strict, ignore the Constitution and violate the privacy of people depicted in the photos.

“[2257] vitiates the protections of the First Amendment by conditioning the creation and dissemination of expressive works containing visual depictions of adult performers engaged in actual sexually explicit conduct on a producer’s compliance with the record-keeping and labeling obligations of the statute, thereby burdening constitutionally protected speech with a presumption of unlawfulness that may be overcome only by the producer’s production of the dossiers and label mandated by law,” FSC counsel wrote.