The majority of the industry breathed a sign of relief when AVN.com published its analysis of the ruling by Judge Walker D. Miller on the preliminary injunction sought by Free Speech Coalition (FSC) in its lawsuit against the 2257 law and regulations.
In fact, the news from Denver in Free Speech Coalition v. Gonzales seemed so positive that many overlooked the fact that the industry still faces plenty of problems from the law that were not addressed in Judge Miller's opinion.
"It's a great start from our standpoint," declared Paul Cambria, counsel for the plaintiffs, "since it clearly solidifies our position regarding secondary producers, and in addition, it addresses a concern we had about the inability to collect images and so on for streaming, for galleries, etc. We do feel, however, that there's more that should occur which would be consistent with what the judge has already ruled on, from our standpoint, and at the moment, our legal team is formulating exactly what our next step is going to be to have the coverage that we've achieved by that decision expanded."
"I would have liked the whole law to be enjoined from scratch," noted H. Louis Sirkin, the primary attorney representing the plaintiffs in the case, "because I think there are fundamental flaws with the original Act as it was enacted, and have always disagreed with the decision that came out in American Library Assn. [v. Reno], the ultimate one that upheld the original version of 2257 as amended."
But 18 U.S.C. §2257, the Recordkeeping and Labeling Act, is still in effect for everyone who isn't an FSC member, and many requirements of it are still in effect even for Free Speech members. One of the most onerous of those, pointed out attorney/AVN columnist Clyde DeWitt, is the "custodian of records" requirement.
"One thing that concerns me is the burden of being at the ready for an inspection," DeWitt explained. "The custodian of the records – and I have no idea why someone could not identify more than one custodian – but as I read the regulations, all of them have to be there during 'normal business hours,' and the burden is just overwhelming."
"Let's say I'm an organization, a company; I name a custodian or two," he continued. "However many custodians I name, they all have to do the same thing. So I look at this and I see that the custodian must be available during normal business hours, 9 to 5, eight hours per day. In California, that's impossible. In California, you're required to give an employee who works eight hours a 30-minute lunch period and two 10-minute breaks, one in the morning and one in the afternoon. Under these [2257] regulations, you can't do that. It's illegal under the labor code and the wage orders in California to do what's required by this regulation – and I'm positive the same would be true in many other states as well."
DeWitt imagined how the conversation would go in the hiring of a 2257 records custodian.
"You say, 'Okay, I'm going to hire you as a custodian of records; this will be your job at our corporation. Now, you're going to have to work from 9 to 5 Monday through Friday, 52 weeks a year. You can't take off any vacation, any sick time – if you're sick, you have to come to work no matter how sick you are; also on Yom Kippur or whatever religious holidays you traditionally observe.'"
"Doesn't matter if the business itself is closed," DeWitt continued. "It says, 'Normal business hours are ...' It doesn't except holidays. It doesn't say anything about getting Christmas off. My greatest concern is that they show up at 9:05 on Christmas morning; knock-knock; nobody's home. 'Well, it's Christmas. We're usually closed on Christmas. That's not regular business hours.' 'Oh, yes, it is. It says so in the regulations.' Some companies have a policy that they close down one week every August, and they do that so they can just shut down production altogether rather than have to hire temporary assistants."
Although the regulations say that producers can "provide notice to the inspecting agency of the hours during which records will be available for inspection," DeWitt assumes that, "I guess you'd have to notify them that you're closed on Christmas. As far as I know, nobody's ever done that – and of course, the regulations don't tell you where to send that notice, a mailing address."
DeWitt and others, notably Chicago attorney Reed Lee, have spent long hours thinking about how the wording of the 2257 regulations will affect adult producers and businesses, and to the average businessperson, some of their conclusions may seem a little strange – but that doesn't mean they aren't correct!
"The other thing about having a custodian present during 'normal business hours' is, it also says, 'or any other time during which the producer is actually conducting business relating to producing depiction of actual sexually explicit conduct'," DeWitt noted. "So let's say the company has sent a crew over to eastern Europe to shoot a movie, which some companies do with some regularity. Now, let's say the crew is shooting at 4 o'clock in the afternoon, which would be perfectly reasonable. What time is that in Los Angeles? Four o'clock in the morning? So you've got to bring your custodian down to the office while your crew is shooting half a world away."
And if that sounds like a pain in the ass for companies, consider the plight of the individual entrepreneur.
"Suppose I'm a freelance photographer," DeWitt opined. "I shoot weddings, bar mitzvahs ... and once in my career, somebody's asked me to shoot a promo for an S&M club. So I shoot some pictures of people that are tied up or whatever S&M people do. But those pictures are 2257-triggering photographs. Okay; now, I look at the regulations and say, 'Gee, 2257 applies to this,' and because I'm an independent contractor, it may be that they're going to list the custodian as the person that hired me to take the pictures, but I still am required to have the records and be a custodian and be at the ready for 20 specified hours a week for seven years. So now, I've got to have the records indexed and everything at my apartment – let's face it, most freelance photographers don't have studios. So now I've got to be sitting there doing nothing 20 hours a week for seven years. Knowing that in advance, I'm going to say to the person who asks me to shoot the photographs, 'Thanks but no thanks; I can't afford this.'"
At the very least, it would appear to put the government in violation of the Thirteenth Amendment!
Other important issues not addressed in the ruling are the status of foreign-born performers without U.S. IDs; the power to seize evidence of a felony during a 2257 inspection; the "Godzilla-size" typeface required for 2257 labels on packaging; and perhaps most important of all, the question of who can be an inspector of 2257 records.
"If somebody knocks on your door and says, 'I'm an inspector'," DeWitt posited, "I imagine you would look at them and say, 'Oh, really? How am I supposed to know that?' 'Well, I'm an FBI agent.' 'Okay, I'll take your word for that. You work for the attorney general, so you're obviously designated by the attorney general.' But I would advise people, if somebody comes and establishes due credentials as an inspector, that you probably ought to let them inspect, because if you don't, there's certainly a fair country argument that you're guilty of obstruction of justice, which is a felony."
In fact, there are bills under consideration in Congress right now that would make failure to allow inspection of 2257 records a crime.
Fortunately, Free Speech Coalition's attorneys have no intention to let Judge Miller's order be the last word on 2257.
"There are a lot of First Amendment issues that had been raised in the pleadings," Sirkin noted, "that the court didn't address, and one of the remedies is to appeal, to go back for a clarification – all types of different alternatives, and that's what's being considered presently. It's nice to know that as to secondary producers, the status quo will remain in place, as the law was prior to the enactment of these regulations, but there are still some questions that we're working on, that at this moment I really consider to be work product discussions that are going on, as to what the options are and where we're going to go."
"We made some points when we were in Denver about the burdensome nature, for example, of the foreign ID process, so obviously that needs to be explored," Cambria detailed. "I do believe we will be able to make a case on the privacy issue. The judge chose to talk about, 'Well, you know, maybe the case hasn't been proven yet' – I do think we'll be able to make a case on that. Clearly, the area that has the most far-reaching implications is obviously the constitutional aspect of it. We're talking about Lawrence v. Texas type issues and Free Speech Coalition [v. Ashcroft] type issues. Those really are the more far-reaching, the more difficult issues to ultimately resolve. I think, the burden issues, the judge has already made it clear that he sees that some things do burden what we do, and I think we can expand those beyond simply streaming and galleries."
One troubling issue was the judge's apparent reaffirmation of the utility of 2257 in preventing minors from appearing in sexually explicit material – an idea which goes against all experience the adult industry has had with the problem.
"I could see why judges at first blush would make these type of statements," Cambria said, "but when you really analyze it, it's pretty obvious that the people who are going to be dealing with children are the last ones who are going to be keeping records, so when you really distill it and analyze it, it doesn't make sense. It has facial appeal to say that, but it doesn't withstand scrutiny."
Among the Coalition's options at this point are 1) to appeal Judge Miller's ruling; 2) to file further motions with the court; or 3) to wait for trial and bring up the remaining issues at that time.
"There are considerations as to whether there should be further amendments to the original complaint," Sirkin said, "and I think everybody is in the mode of trying to absorb the whole order itself. We've had some preliminary discussions already, and we're going to have some more after we give people additional time to think."
It's important to note, Sirkin feels, that even though Judge Miller was expected to strike down the "secondary producer" requirements in the regulations, since his federal circuit had already ruled them illegal, the current ruling has substantially more impact since it covers all members of the Free Speech Coalition, no matter in which state or circuit they do business.
For FSC board chair Jeffrey Douglas, that's one of the primary benefits of Free Speech membership.
"It is noteworthy that the ruling applies to old members, current members, new members – and there's no deadline, so if someone is not covered and they were to join tomorrow, they would be covered," Douglas said.
"Best of all," Douglas continued, "the ruling provides the first really clear guidelines for compliance for most of the industry that we've ever had, and those 'rules of the road' are going to apply for years. I would say a minimum of two years, and more likely three. This opinion is what we're all going to be living with for the foreseeable future, and people can absolutely rely on it."
But what if, to take a worst case scenario, Free Speech loses its case at trial?
"That's the cool part," Douglas chuckled. "The cool part about a preliminary injunction is that this is the minimum threshold that we're going to get at trial, because he's already made the decision, so unless somehow or another, the government is able to prove that facts that we know exist don't exist, this is the minimum we're going to get at trial."
What if Congress should pass new laws, like the Child Safety Act, co-sponsored by Rep. Mike Pence (R-Ind.) in the House, or Sen. Orrin Hatch's (R-Ut.) Protecting Children from Sexual Exploitation Act?
"Both the Pence and the Hatch bill attempt to overrule Sundance [Associates v. Reno, the original "secondary producer" decision] by tracking the language of the regulations and putting them into the statute," Douglas explained. "But if they were to do that, it would mean that the regulations would be prospective only; that is, all of the material that already exists, everything made in 2005 or before, and likely most made in 2006, would be forever exempt from the secondary producer component, and that creates enforcement problems for the government. Also, in terms of the burden on the industry, not having to try to go back and recreate things, but rather just rely on new product and track new product, that would be much easier to manage, although that creates new constitutional problems which might necessitate another lawsuit. So if the Pence or Hatch bills are enacted in any form like they are now, there will be additional constitutional challenges by the Free Speech Coalition, about which I am confident of our ability to prevail."
"I am very, very happy," Douglas summarized. "We didn't get everything we wanted, but we got realistically as much as we could, and more importantly, there's a clear roadmap that the judge laid out. The judge said, 'You want me to strike down something as unconstitutional? Prove the following.' And I am moderately confident we can prove all of it. We do need more assistance from the industry. We need people to step forward and say, 'This is how it's having impact on us.' And I am optimistic that with the ruling being as good as it is, that people's fear of coming forward will be reduced."
