In late July, U.S. District Judge Michael Baylson granted the government’s motion to dismiss FSC’s lawsuit, which contends that 2257 and 2257A regulations are unconstitutional, as well as an unfair burden placed to producers to comply with the regulations.
FSC said they filed the motion on Rule 59(e) to alter or amend a judgment because they believe that Baylson failed to address the key constitutional question in the case.
The FSC said that the court "overlooked a subtle but critical point: that the comprehensive record keeping interest to which the challenged statutes are narrowly tailored is meaningfully different than the government’s significant – indeed compelling – interest in suppressing child pornography."
"The burdens which it imposes upon speakers who produce or reproduce no child pornography at all and, even more importantly, on expression which is not, in fact, child pornography are very serious," the FSC said its motion. "Congress may not substantially burden protected expression merely because it may resemble unprotected expression.
"Producers who have never had anything at all to do with child pornography are required, on pain of a federal felony conviction, to invest very substantial time, effort, and resources in an extremely elaborate and pervasive record keeping scheme."
Many of the secondary producers, the FSC said, have never actually created a sexually explicit image at all and never will.
"All of them devote substantial resources to record keeping which would otherwise be available to fill the demand for more expression," the FSC said. "Still others are so chilled by the elaborate requirements and the serious criminal penalties that they refrain from creating or reproducing any sexual expression at all.
"The government's express warning that each primary and secondary producer will remain culpable for any failure on the part of a third-party record keeper currently chills reasonable producers from relying upon them."
The motion was filed by FSC attorneys Michael Murray and Lorraine Baumgardner with assistance of attorney Reed Lee, an FSC board member and Legal Committee chair.
“We are looking for this motion to pinpoint the focus to the critical points of the litigation,” Lee said.
Diane Duke, executive director of the FSC, said that she's optimistic the court will consider the issue.
"In his decision, Judge Baylson failed to address what we believe to be one of the most key components of our argument," Duke told XBIZ. "By filing the rule 59(e) we will give him the opportunity to fully consider and address the issue."
A motion to alter or amend a judgment must be filed no later than four weeks after the entry of the judgment, the FSC said. The government then has two weeks to reply to the motion.