Colorado District Court Reaches Decision On Summary Judgment Motion in 2257 Case

On March 30, U.S. District Court Judge Walker D. Miller handed down a decision on the Motion for Summary Judgment filed by Free Speech Coalition in its lawsuit against Attorney General Alberto Gonzales and the Recordkeeping and Labeling Law, 18 U.S.C. §2257, and the regulations drawn up by Gonzales for enforcement of the law.

The following is a memorandum prepared by First Amendment attorney and AVN Legal News columnist Clyde DeWitt regarding the outcome and effects of Judge Miller's decision:

RE: Free Speech Coalition v. Gonzales, Decision on Summary Judgment

On March 30, 2007, the court in the Denver Free Speech Coalition case issued a ruling on the Government's motion to dismiss and/or for summary judgment.  Here is a summary of the most significant parts, with crucial points in bold italics:

The First Amendment Challenge

The complaint challenged the entire 2257 scheme as a violation of the First Amendment, claiming that it required so-called "strict scrutiny" analysis, which applies to prior restraints of speech and, where applicable, requires the government to establish that the regulation is the least restrictive means to further a compelling governmental interest.  The court rejected that, holding that so-called "intermediate scrutiny" applied.

Under intermediate scrutiny, the plaintiffs' fall-back position, the court held that the analysis in City of Los Angeles v. Alameda Books applied.  In very general terms, that test requires that the government show evidence that "fairly supports" the proposition that the regulation furthers an important governmental interest (in the case of Alameda, undesirable secondary effects of speech).  Then the burden shifts to whomever is challenging the ordinance to cast doubt on the government's evidence.

Here, the procedural posture of the case is important.  The government filed a motion for summary judgment.  Under the relevant rules, the opponent of a motion for summary judgment (here, FSC) can move to stop the motion from being heard until discovery can be conducted (depositions, interrogatories, etc.) to challenge or to probe into the moving party's evidence.  Here, FSC had agreed to suspend all discovery and did not make the motion to conduct more discovery in response to the motion for summary judgment.  Therefore, the court held that the government's showing "fairly supported" the regulation and granted the motion, and therefore rejected FSC's First Amendment challenge altogether.

The Sundance Case and "Secondary Producers"

The court, on its own, noted that the Adam Walsh Act had amended the statute, and therefore Sundance had been effectively overruled by Congress.  The court allowed FSC until April 16th to show why the law, as amended, is unconstitutional; and until the end of April for the government to reply.

Therefore, any time after May 1, 2007, the court may rule that secondary producers are required to have copies of the records, have them indexed, and be subject to inspections.

Foreign Identification

The court accepted the Government's interpretation concerning what type of identification is required when shooting overseas and when shooting in the United States.  It upheld the domestic identification requirement for domestic production and adopted the government's interpretation regarding offshore production.

Therefore, when shooting outside of the United States, any government's picture identification including the person's legal name, photo and date of birth is acceptable, even if the producer's office is in the United States; shooting within the United States or its territories requires that same type of identification, but only issued by the United States or a state government.

Web Sites

The court also accepted the government's construction that keeping "a copy of the URL associated with [a] depiction" means the textual information designating where the depiction can be found.  Therefore, "a copy of the URL" simply means where the image is located, for example,

"Copy" of Identification Documents and Images

In responding to the vagueness objection to the definition of "copies", the court said that, at worst, the regulations required keeping an copy that might be expensive, which the court did not find to be a problem.  However, fortunately, the government had offered a construction that "copy does not mean original," which the court approved.  The court construed that to mean that "a producer of a film that is regularly sold in DVD format may comply with the regulations by keeping one of these DVD's in his files."

Accordingly, the required "copy of the depiction" can be kept by keeping a copy of the commercially available DVD."  This also appears to mean that if a Web site offers the files in ".mpg" format, then the copies may be kept that way.

The court also accepted the government's interpretation of the regulations that the producer is required to maintain only one copy of each depiction with each the records.  Thus, a producer is in compliance so long as the records are accompanied by an identifiable copy of each depiction (such as one copy of an entire DVD library for a DVD manufacturer or one copy of the entire Web site for a webmaster).

Date to be Contained in the Label

FSC complained that the requirement that the disclosure statement include the "date of production, manufacture, publication, duplication, reproduction, or reissuance of the matter" was ambiguous because it was too difficult to determine which date to use.  The government took the position that, because the word "or" was included, any of the dates would suffice, and the court agreed.

Thus, the date on the disclosure label can be, at the producers discretion, the date of production, manufacture, publication, duplication, reproduction, or reissuance.  This is particularly useful for webmasters, because the date of "reissuance" is always today, which means that Web sites can use an electronic "date stamp" and simply say, "The date of reissuance is today, [date stamp]."

Privacy Rights of Performers

FSC advanced the important contention that performers were subject to identity theft and harassment by virtue of distribution of identification documents containing their personal information.  In response, the government said that primary producers could redact their addresses, social security numbers and all but the year from their date of birth.  The court rejected out of hand the contention that home-based producers would be subject to the same privacy problems by listing their residential addresses.

Thus, primary producers may obliterate from identification documents the performers' addresses, social security numbers and all but the year from their dates of birth.  It would seem reasonable to assume that secondary producers, who already have in their possession non-redacted identification documents, may also redact that information.

Generally left for trial are (1) Internet chat rooms; (2) Web sites not under control of the record-keeper; (3) The regulations' facial requirements producers must comply with 2005 amended regulations with respect to pre-2005 depictions; and, as noted above (4) the validity of the secondary producer record-keeping, etc., requirements under the Adam Walsh Act.