No Decision in 2257 Preliminary Injunction Hearing; Judge Takes Evidence Under Advisement
While hopes were high prior to the hearing – which was first scheduled for Aug. 8 and then switched to Aug. 2 – that Judge Walker D. Miller would issue a ruling, he instead took all written material under advisement and has an indefinite period of time to make a decision, which he implied would not take long.
“You should get a comparatively early ruling," Miller said at the conclusion of today's hearing.
Several adult industry attorneys present in the courtroom felt Miller was very receptive to some of the arguments presented by the FSC’s legal team.
“Our argument that there are certain aspects of the new regulations that are impossible to comply with in some circumstances – particularly the URL requirement and the copy-of-the-depiction requirement – found the judge receptive,” Greg Piccionelli told XBiz.
“It's obvious that [Judge Miller] believes he has to follow the 10th Circuit decision on Sundance,” attorney J.D. Obenberger told XBiz. “It is less clear what he's going to do on other issues, but you can tell he has some preliminary ideas on things."
Lawyers representing the FSC vs. U.S. Attorney General Alberto Gonzales are seeking a permanent injunction to protect FSC members from 2257 enforcement. The FSC brokered a deal in June for a temporary restraining order against 2257 and is now aiming to squash the amendments altogether.
The new regulations pose stringent requirements on primary and secondary producers of adult content in verifying the age of performers, including date of birth, legal name and a copy of a photo identification card. As it stands, 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.
“It is very rare that a judge rules on a preliminary injunction on the bench,” attorney Reed Lee told XBiz prior to flying to Denver to join the all-star cast of industry lawyers representing the FSC.
Today’s hearing featured three attorneys arguing on behalf of the FSC. At the table for plaintiff's counsel were attorneys Paul Cambria, H. Louis Sirkin and Jennifer Kinsley.
Attorneys Michael Gross, Sirkin and Cambria handled oral arguments. In support were another half-dozen lawyers, including Jeff Douglas, Lee, Piccionelli and Obenberger.
Attorneys representing Justice included Carl J. Nichols, deputy assistant attorney general, and trial attorney Samuel Kaplan.
In opening arguments, Sirkin asked the court to maintain the status quo that existed prior to June 23, 2005, when the amendments went into effect, adding that the new regulations “ban protected speech.”
“There's a compelling interest to protect children, but there's also a compelling interest in protecting the First Amendment,” Sirkin said, arguing that per Justice’s decision to amend 2257 law, a whole category of speech cannot be banned, and that the record-keeping requirements effectively ban a whole category of un-recorded speech.
Cambria argued that adhering to compliance with regulations was too costly and that, “Free speech has never been a rich man's privilege.”
Making one of the more poignant arguments of the afternoon, Cambria referred to a deposition done with Justice’s expert witness Howard Schmidt, a former eBay and Microsoft technology expert.
“We know at least two things,” Cambria said, addressing one of the major sticking points of the amended 2257 law. “That it is impossible to do URL and streaming video capture.”
Cambria also managed to catch trial attorney Samuel Kaplan short on some of his facts. At one point during the closing of the hearing, Kaplan said that primary producers wouldn't have to track every last URL. But he was quickly corrected by Cambria, who pointed out that the amendments published in the Federal Register stated clearly that “every iteration” must be recorded.
Another one of the central arguments in the FSC’s case, and the reason for filing the lawsuit in Denver, is the 1998 Sundance Associates vs. Reno case, in which the U.S. 10th Circuit Court of Appeals ruled that secondary producers were not required to maintain records in the same manner as primary producers.
And while the Sundance ruling was not binding on a federal level because it applied only to those individuals living in the jurisdiction of the 10th Circuit, the FSC is banking on the argument that the court will grant injunctions prohibiting enforcement of the majority of the new regulations, if not the entire statute.
The FSC is asking for the term “secondary producer” to be stricken from the amendments based on the Sundance decision and the belief that it “imposes burdensome record-keeping obligations that impermissibly chill the dissemination of expression protected by the First Amendment.”
However, Justice argued that the FSC’s claim that secondary producers should be exempt is “incompatible” with the enactment of the Protect Act in 2003, which modified the definition of producer by adding the words “computer generated image, digital image or picture,” a determination that could easily stretch the definition to cover a web-based producer of any type, be they primary or secondary.
The Protect Act specifically relied on the American Library Association vs. Reno that extensively discussed the definition of what a secondary producer was in relation to a primary producer, determining that both were responsible for maintaining age-verification records on all performers.
Under the terms of the agreement brokered with Justice in June, authorities agreed not to conduct any inspections or pursue any claims against FSC members through Sept. 7, but the government reserves the right to inspect and prosecute companies that are not a plaintiff or an FSC member.
Justice believes the new 2257 regulations, which are now more clearly targeted at online adult business owners, help prevent the exploitation of children, help deprive child pornographers of access to commercial markets and establish a system that allows inspectors in possession of explicit material to ensure that the material is not child porn.
Evidence submitted by Justice included a CD-ROM compilation of websites thought to depict “young looking” performers engaged in sexually explicit activities, among them were StrictStepdad.com, Teens.to.com, RedTeens.com, CastingCouchTeens.com and Sapphicerotica.com.
Justice believes that the costs of providing records to secondary producers will not be prohibitive and that the only change in the new regulations “relates to providing more specific information for how Internet distributors comply with labeling restrictions.”
Additionally, the amended labeling requirements do not apply to retailers and wholesalers of explicit content, requiring only that the material they sell is properly labeled with disclosure statements.
Individual plaintiffs in the case are David Conners, also known as producer and adult talent Dave Cummings, and New Beginnings, a California wholesaler of adult movies and novelties.