WASHINGTON - U.S. Justice Department trial attorney Samuel Kaplan sent a letter earlier this month to the attorneys representing the Free Speech Coalition in a lawsuit seeking to permanently enjoin 2257 record-keeping amendments. Kaplan’s letter “corrected” six terms in the amendments that the FSC attorneys felt had caused the greatest amount of confusion and were most inconsistent with the regulations and supporting comments.
FSC attorneys considered Justice’s retreat from those terms to be a step in the right direction; however, it is not yet known whether Kaplan’s letter will be binding as the case moves forward.
The letter stated the following clarifications to the statutes that were first published in the Federal Register May 24:
Domestic producers who travel outside the United States to record images of actual sexually explicit conduct may rely upon foreign government issued passports.
The requirement that “a copy of the depiction” must be maintained applies only prospectively; that is, materials recorded prior to June 23, 2005, are not covered, and no copy of the performance need be maintained.
The requirement that the “date of production, manufacture, publication, duplication, reproduction, or reissuance” be identified on the label is satisfied by stating the last date of filming and characterizing that as the date of production.
Material produced before June 23, 2005, that was compliant with the old regulations may continue to be marketed without fear of prosecution under the new regulations.
The term “actual sexually explicit conduct” does not include “lascivious exhibitions of the genitals;” (i.e., mere nudity).
Websites containing no depictions of “actual sexually explicit conduct” but that provide hyperlinks to third party websites which do contain such material have no record-keeping obligations.
The case of the FSC vs. Attorney General Alberto Gonzales was last heard on Aug. 2 in Denver, Colo. A ruling from the judge on whether to grant the FSC a preliminary injunction against the amended regulations is still pending.
