In a letter response to Free Speech Coalition (FSC) attorneys H. Louis Sirkin and Jennifer Kinsley, Justice Department (DOJ) trial attorney Samuel C. Kaplan answered five of FSC's 14 Interrogatories (a formal document requesting information about an opposing party's legal case) and seven of its 12 Requests for Admission – but even these few responses demonstrated that the government is already prepared to do some major back-pedaling in its attempts to defend the new 2257 regulations.
The revelations came from FSC board chair Jeffrey Douglas, who addressed attendees at the Adult Novelty Expo's 2257 seminar, having rushed to the convention in Pasadena, Calif., immediately after having completed his deposition in FSC v. Gonzales, the Coalition's lawsuit challenging the new 2257 regs as well as the underlying law itself.
Also on the seminar panel were FSC Executive Director Michelle Freridge, First Amendment attorneys Clyde DeWitt and Greg Piccionelli, and AVN Senior Editor Mark Kernes. The panel was moderated by Tom Hymes, FSC communications director.
"The Department of Justice, moreover, does not issue advisory opinions as to the legality of particular conduct in response to individual requests, whether or not those requests come in the context of litigation," Kaplan wrote in a general response to the tenor of some of the plaintiffs' questions. "It is the responsibility of individuals to ascertain their legal obligations and to comply with those obligations. The regulations also speak for themselves on the matters set forth in the requests, and plaintiffs have inquired about certain issues that the commentary to the regulations specifically addresses."
That said, Kaplan went on to answer a few of the important questions raised about the regulations, and to make a number of concessions about points that are of concern to the adult industry.
For example, many U.S.-based adult producers were confused about whether they could legally shoot videos outside the country using performers with non-U.S. picture identifications, since the new regulations implied that foreign performers could only be used in non-U.S. productions.
"Were plaintiffs to raise this issue in a legal filing," Kaplan responded, "defendant [Gonzales] would take the position that the words 'located outside the United States' encompass individuals or entities whose places of residence and/or places of business are in the United States but who travel to foreign locations to create material depicting actual sexually explicit conduct. Such individuals or entities would, of course, not be 'located outside the United States' for all purposes, but only with respect to the material that is created abroad."
Also settled is the question of whether the new regulations, which went into effect on June 23, 2005, for all adult producers who were not plaintiffs or FSC members before June 25, were applicable to material "created in the first instance" only after June 23, or did they also apply to material originally created before the date the regs went into effect.
"Were plaintiffs to raise this issue in a legal filing," was the DOJ's response, "defendant would take the position that the quoted language refers to material created in the first instance after June 23, 2005, and not to pre-existing material that is assembled, manufactured, published, duplicated, copied, digitized, reissued, or disseminated after June 23, 2005."
Another issue has been whether the appropriate "date of production" to include on the required 2257 label could simply be, in the case of a video production, the last date that shooting on the feature took place, or if the work were later duplicated or altered, did another date need to be listed?
"Were plaintiffs to raise this issue in a legal filing," was the response, "defendant would take the position that it is sufficient to include the date upon which the original creation of the work was completed as opposed to the last date a film was duplicated. It is unclear, however, what plaintiffs mean by 'any alteration.' Defendant could not say that the date of original creation would be sufficient in the case of 'any alteration' to the work."
Also settled is the fact that in video compilations, a 2257 notice is not required after every scene, listing from what previous production each scene was taken, but rather only a single label incorporating the compilation's date of production at the conclusion of the end credits or within one minute of the beginning of a film which has no end credits.
Video manufacturers will be overjoyed to learn that even if their records obtained and kept between July 3, 1995, when the first 2257 regulations went into effect, and June 23, 2005, the effective date of the new regulations, did not include a government-issued picture identification card for each performer but rather, for instance, a college picture ID or some other previously valid picture ID, those IDs will be sufficient for compliance under the new regulations. The government has also agreed that any material that was compliant with the original 2257 regs but which is not compliant with the new ones may still lawfully be sold.
Another major concern has been the meaning of the words "assisting another person to engage in actual sexually explicit conduct" as used in 18 U.S.C. §2257(h)(4). The government has now agreed that that term only applies to "actions which involve direct physical contact between the referenced individual and the person he or she is assisting to engage in actual sexually explicit conduct." In other words, for instance, art directors who design sexually explicit video boxes and video technicians on sets do not fall under the requirements of 2257(h)(4).
The term "actual sexually explicit conduct" is not defined in the new regulations, but rather, those regs refer to the definition of that term contained in 18 U.S.C. §2256. However, 2256 has been amended several times, so FSC asked the government to agree that the term "includes only actual instances of those actions listed in the current version of 18 U.S.C. §2256(2)(A)(i)-(iv)." The government agreed. This means that "mere nudity," which would have been deemed covered by 2257 under the original definitions in 2256, is in fact not covered under the new regulations.
Finally, FSC sought an admission by the government that "a website that contains no depictions of actual sexually explicit conduct, but provides hyperlinks to a third-party website containing such material, need not comply with the record-keeping requirements." The government agreed that, "[w]ere plaintiffs to raise this issue in a legal filing, defendant would take the position that this statement is accurate."
Douglas' run-down of the new state of the 2257 regulations was one of the high points of the seminar, but other participants gamely pressed ahead, providing information on the history of the 2257 regulations, analyzing who and what material was covered under the new regs, and how best to keep those records.
Greg Piccionelli provided most of the information about the regulations' requirements, and advised producers to keep two separate sets of records: One set that contained only the required 2257 data, and a separate set with all other necessary productions documents, such as model releases and HIV tests.
Later, Clyde DeWitt added that the 2257 records should be kept in a separate room entirely, with nothing else in that room except perhaps "sports posters, and it couldn't hurt to have a copy of the Bill of Rights on the wall too." He even went so far as to note that the regs don't even require the records room to contain a chair or a window, nor that it even be air-conditioned – and that records custodians would be well advised not even to make small-talk with the inspectors.
"People forget that the First Amendment's 'freedom of speech' clause also includes the freedom not to talk," he noted.
Michelle Freridge advised the attendees that if they joined FSC even after the cut-off date for the official member list which was supplied to the Court's "special master" late last month, although their names would not appear on that list, they were nonetheless covered by the preliminary injunction entered into by FSC and the Justice Department. However, she noted, at the August 1 hearing to extend the preliminary injunction, FSC would argue that all then-current FSC members should be added to the list of companies that the Justice Department was banned from inspecting and prosecuting under the new regulations.
The seminar lasted two full hours, with plenty of questions about specific problems and concerns from the audience, which the attorneys did their best to answer. One thing all participants agreed on, however, was that seminars such as this one are no substitute for employing the services of a knowledgeable First Amendment attorney.
