Attorneys for the Free Speech Coalition (FSC) have filed the plaintiffs' response to a motion by the U.S. Department of Justice (DOJ) for summary judgment in Free Speech Coalition v. Gonzales, FSC's lawsuit to strike down 18 U.S.C. §2257, the recordkeeping and labeling law and the regulations attendant to it.
The DOJ filed its motion on Dec. 22, 2005, roughly one week before U.S. District Court Judge Walker D. Miller issued his preliminary injunction in the case. That injunction, though currently under challenge by FSC, mooted several of the government's arguments for summary judgment – that is, for Judge Miller to rule on the case based entirely on the evidence presented so far in pleadings and depositions – and affected several others.
Essentially, the government argued that 2257 and its regulations are not content-based restrictions on speech, and therefore only intermediate (rather than strict) scrutiny of the law should be applied; that the law is necessary to prevent minors from appearing in sexually-explicit content; and that the law imposes only minor recordkeeping burdens on the adult industry. In its response, FSC has challenged all of those arguments.
"In the amended complaint, Plaintiffs assert that 18 U.S.C. §2257 is a content based restriction on protected speech that should be evaluated under strict scrutiny analysis," wrote the six attorneys, including H. Louis Sirkin, Paul Cambria and Michael Gross, who represent the plaintiffs. "The statute imposes heavy burdens on a broad category of protected speech, namely sexually explicit images, based solely on the basis of the content of that speech."
The plaintiffs also argue in their complaint, and reaffirm in the response to the motion for summary judgment, that the 2257 regulations, and indeed the Act itself, are overbroad and "reach a vast amount of protected speech that not even arguably involve children and which are outside the Government’s interest in controlling child pornography."
Judge Walker has already ruled in the preliminary injunction that the 2257 statute is not content-based, and therefore is not entitled to be held to the "strict scrutiny" standard, but that decision was based primarily on the pleadings of both parties plus the depositions of six witnesses; it could change.
"As refined by [City of Los Angeles v.] Alameda Books, intermediate level scrutiny imposes a burden on the Government to justify regulations of protected speech and expressly contemplates an opportunity for persons to challenge the methodology and evidence behind these justifications," the plaintiffs argue. "By its very nature, intermediate level scrutiny involves an evaluation of facts presented by the parties after an opportunity for discovery. As such, the Court’s previous determination and the Government’s concession that, at a minimum, intermediate scrutiny of the challenged statute and regulations are the proper standard would definitely suggest denial of the Government’s motion at this early stage of the case before an answer has even been filed."
Plaintiffs note that, according to the Supreme Court's decision in Ward v. Rock Against Racism, government regulations on speech must not "burden substantially more speech than is necessary to further the Government's legitimate interests," and that "Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Certainly, the Justice Department will be hard-pressed to justify its 2257 regulations when evidence is introduced at trial that a substantial majority of adult performers could never be mistaken for minors, yet all are required to provide picture IDs and all production companies that use them are required to keep voluminous, cross-indexed records.
Much of the government's motion for summary judgment relies on assertions that the text of the 2257 regulations will not be applied as broadly as the words themselves would imply. That argument draws in part on a letter last summer from Assistant U.S. Attorney Sam Kaplan, the chief counsel for the government in this case, to the plaintiffs' attorneys which attempted to narrow the meanings of certain vague terms in the regulations – a letter which Kaplan largely repudiated at the preliminary injunction hearing last Aug. 2 by claiming that the answers to most of plaintiffs' objections were contained in the "Responses to Public Comments" section of the new regulations.
But many terms and clauses in the regulations remain unclear, and Free Speech here argues that only a trial will bring closure to the conflict over scope, vagueness and overbreadth.
"In several instances, the Government has offered narrowing constructions in response to Plaintiffs’ complaint and asks for dismissal of those claims," plaintiffs note. "To the extent that such narrowing constructions do not represent binding judicial or administrative determinations or well-established official practices, Plaintiffs contend that the proper way to dispose of such disputes is for either the Government to offer partial judgment on the claims that are dependent on its narrowing construction for survival or the Court to grant summary judgment on the claims in Plaintiffs’ favor."
For instance, in the overbreadth category, FSC notes that, "In a purported effort to prevent minors from performing in sexually explicit visual depictions, the Government requires picture identification to be obtained from all performers, regardless of whether they are 18 or 40 or 60. The regulation imposes the significant burdens and costs of maintaining copies of picture identifications in a record-keeping system (as well as indexing and cross-referencing all names the performers have ever used) even upon producers who do not utilize the 'young-looking performers' the government claims is the focus of the statute and its regulations. A trial in this matter will show that thousands of performers in the adult entertainment industry are long past the 'young-looking' performer designation for which the government professes concern, and that a substantial portion of producers do not create or disseminate expressive content involving young-looking performers."
One argument not made in FSC's answer, but which would undoubtedly be made at trial, is that all of the underage performers of which the industry is aware, including the famous Traci Lords and well-known Alexandria Quinn, had presented picture IDs which would have passed 2257 muster, leaving the law and its regulations powerless to have prevented their appearance in sexually explicit content.
In its answer, FSC also objects to the vagueness of such terms as "sadistic or masochistic abuse"; the use of the term "portrayed" in the phrase "portrayed in a visual depiction of actual sexually explicit conduct after June 23, 2005"; the word "copy" in the phrases "a copy of any URL associated with the depiction" and "copy of the depiction" (of any performer portrayed in actual sexually explicit conduct); and the word "assisting" in the phrase "assisting another person to engage in, actual sexually explicit conduct" which is found in the definition of a "performer."
Also impermissibly unclear are the terms used to designate the location of the required 2257 notice on Web pages.
"28 C.F.R. 75.8(d) provides that a website 'shall contain the required statement on its homepage, any known major entry points, or principal URL (including the principal URL of a subdomain), or in a separate window that opens upon the viewer's clicking of a hypertext link'," the plaintiffs' response argues. "The regulation does not define 'homepage,' 'known major entry points,' 'principal URL,' and 'principal URL of a subdomain.' It also fails to detail the required location of the hypertext link referred to in the regulation... Indeed, the adjective phrase 'major known entry point' implies that the Government recognizes that there are 'minor known entry points,' but webmasters are not told how to tell the difference."
Similarly, the regulations fail to specify where and in what form the 2257 notice must appear in compilation tapes/DVDs of sexually explicit scenes from different video features, each of which would have a different date of production (another impermissibly vague term, the answer also argues).
Finally, plaintiffs argue that a summary judgment in the case would leave open the important Fifth Amendment and privacy claims of both production companies and performers.
"Plaintiffs challenge the fact that §2257 permits the Government to use inspected and seized records in obscenity and child pornography prosecutions as Fifth Amendment violation," the answer to the motion for summary judgment reads.
After dealing with the Justice Department's contention that plaintiffs have no standing to challenge that aspect of the 2257 regulations because no one has yet been charged under the Act, the plaintiffs continue, "The Government also claims that there is no credible threat that Free Speech Coalition’s members will be prosecuted for child pornography or obscenity. This assertion, too, flies in the face of reality. In 2003, the United States initiated a ten-count obscenity prosecution against Extreme Associates, Inc., one of the country’s larger and more high-profile producers of sexually explicit materials. More recently, the federal government has charged a well-known adult bookstore chain and its owner with obscenity offenses, as well as also increasing its budget to combat child pornography and obscenity on the Internet." [Citations removed.]
Plaintiffs are also concerned about the right of privacy that performers are required to give up under the regulations when they provide photo IDs that contain their real names, birth dates and home addresses, making them ripe for identity theft regardless of the safeguards claimed by the government for such records.
"Section 2257 and its implementing regulations threaten to jeopardize the personal privacy of performers by mandating disclosure of highly personal information to countless third parties beyond the performers' sphere of influence," plaintiffs argue. "The Government attempts to defeat this claim by arguing that primary producers may redact the month and day of birth as well as the residential addresses of performers from their driver’s licenses prior to transferring the records to secondary producers. There is nothing in either §2257 or the implementing regulations that permit such an action."
Considering that it took five months for Judge Walker to issue his preliminary injunction in this case, it's unclear when a decision on the government's summary judgment motion will come down, but the likelihood is that the motion will be rejected for some or all of the reasons set forth in FSC's answer. In the meantime, the ban on the recordkeeping requirements for both video and Internet "secondary producers" as well as the recording requirement for live Webcam shows remains in effect for Free Speech members – and so far, the government has maintained its current 16 year record of no inspections of adult producer records under this "vitally important regulation."
