“It is fair to say that the government recognizes that some of the amended regulations are difficult to defend,” Douglas said, hinting at a potential victory for the preliminary injunction hearing in FSC vs. Gonzales, scheduled for Aug. 1. “They [Justice] have consistently been taking a fall-back position from the start, and we have leverage and reason to believe policy makers are holding a losing hand.”
Douglas went on to say that during a legal proceeding referred to as an "interrogatory," which is the formal, written questioning of an opposing party in the discovery phase of a lawsuit, he was surprised that many of the questions submitted by the FSC to the government's attorney Samuel Kaplan went unanswered.
“We are moving ahead in good faith and the government is not,” Freridge said. “All we’ve gotten are lame excuses; but in a way, this is a good sign.”
The questions that Justice did answer, Douglas said, were directly related to some of the amended 2257 record keeping statutes that the FSC and its fleet of lawyers found particularly confusing and inconclusive. Of paramount interest was whether the regulations have actually expanded the reach of 2257 beyond sexually explicit conduct to also include mere nudity.
In the revised 2257 law, there is no definition of actual sexual conduct, but instead it refers back to another law called 2256, Douglas said, which covers child porn statutes. When 2257 was first enacted in 1995, it derived its definition of explicit sexual conduct from subsections A-D of 2256. Subsection E referred to the presence of nudity in visual depictions, and by not including E, it was clear that nudity was not covered in 2257 law.
In 2003, 2256 was amended to include sections A-E in its definition of explicit conduct, therefore, making 2257 law also pertain to simple visual depictions of nudity, as opposed to sexually explicit conduct involving genitals.
However, Douglas added, Justice confirmed in its interrogatory response that the definition now held current under 2257 only pertains to "lewd exhibition of the genitals."
“We are now absolutely certain that mere nudity is not covered by 2257,” Douglas said. “All of their waverings are strong indication that they [Justice] realize they are dead and stinking and will not prevail. At this point, they are trying to gut their earlier statements in order to save themselves."
The panel's advice to some of the sex toy retailers in the audience included making sure that disclosure statements on toy and video boxes that feature sexually explicit conduct are solidly in place, even if genitals are pixilated out, although 2257 does not apply to the sex toys themselves.
For videos, disclosure statements are required to appear at the end of the video if there are credits, and at the beginning if there are no credits. However, Justice has not been entirely clear in its definition of “end credits,” DeWitt told the crowd.
DeWitt also said that sexually explicit pictures and renderings on packaging or video boxes that featured depictions as subtle as the face of a person having or pretending to have an orgasm are required to have an accompanying disclosure statement.
“Retailers should monitor all of their titles,” DeWitt said. “And know who you’re buying from.”
