In an opinion issued Wednesday, U.S. District Court judge Walker D. Miller ruled in favor of the Free Speech Coalition on two key sections of its lawsuit against 18 U.S.C. §2257, the federal Recordkeeping and Labeling Act, and the regulations issued by Attorney General Alberto Gonzales that apply to that law. The case is Free Speech Coalition v. Gonzales.
"The [Tenth Circuit Appeals] court found that §2257's language was clear and unambiguous," Judge Miller wrote of the Tenth Circuit's decision in Sundance Associates v. Reno. "It excluded from the regulation 'those who basically have had no contact with the performers (mere distributors and others not involved in the 'hiring, contacting for[,] managing, or otherwise arranging for the participation of the performers depicted'). The Court concluded that the Attorney General’s regulations improperly failed to 'exclude persons from the class that the statute requires.' The court rejected the Attorney General's argument that the regulations' comprehensive regulatory scheme was necessary to adequately enforce the record-keeping requirements, noting that although the Attorney General may have identified a problem with the statute, 'neither the court nor the Attorney General has the authority to rewrite a poor piece of legislation. . . . That responsibility lies solely with Congress.' Consequently, the court ordered the clause 'other than those activities identified in paragraphs (c)(1) and (2) of this section' be stricken from the regulation." [Citations omitted here and below]
"None of Defendant’s arguments change the reality that Sundance is binding upon me," Judge Miller's opinion continues. "The Tenth Circuit specifically held that §2257(h) is unambiguous and that plain language of the statute excludes persons 'who basically have had no contact with the performers.' The amendment does not alter the relevant language, or somehow render the provision ambiguous. Accordingly, even were I to agree that the statute is ambiguous, I am bound by principles of stare decisis to hold that the statute is unambiguous. Only the Tenth Circuit or the Supreme Court can change established Tenth Circuit precedent."
Translation: Under 2257, "producers" are only those who have actual contact with performers, and therefore must keep and index records. However, Judge Miller's phraseology suggests that he may not think the term "produces" is as unambiguous as the appeals court did – statements that the government may seize upon in appealing this decision.
On the other hand, in speaking to plaintiffs' claims of the irreparable harm caused by the immense costs required to maintain records and copies of depictions, and the fact that many so-called "secondary producers" relied on the Sundance decision and did not keep the records required of "primary producers," Judge Miller wrote, "Defendant [Gonzales] argues that a movant may not rely on irreparable harm that is self inflicted to support a motion for a preliminary injunction, and thus, to the extent they placed themselves in harm's way by unreasonably relying on Sundance, they may not show irreparable harm. I disagree that Plaintiffs acted unreasonably by relying on the decision of the one court of appeals that has directly addressed the issue."
"There is no indication that, should Plaintiffs ultimately obtain a ruling in their favor, they could obtain any legal relief or other compensation for the costs they incur based on the invalid application of the statute and regulations," the ruling continues. "Under these circumstances, I find that Plaintiffs face irreparable harm absent an injunction preventing Defendant from enforcing the statute and regulations against secondary producers who do not have direct contact with the performers."
However, producers of sexually explicit content should pay close attention to the following sentence from the opinion: "Defendant is enjoined, pending the outcome of these proceedings or further order, from treating any of the Plaintiffs or members of plaintiff Free Speech Coalition as 'producers' under 28 C.F.R. part 75 or persons or entities 'produc[ing]' any book, magazine, periodical, film, videotape, or other matter containing one or more visual depictions of actual sexually explicit conduct under 18 U.S.C. §2257, to the extent that plaintiff or member of plaintiff Free Speech Coalition's activity does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performer."
While the above phraseology is somewhat unclear, it appears to say that the judge's ruling regarding "secondary producers" only applies to the lawsuit's plaintiffs – Free Speech Coalition, New Beginnings and Dave Cummings – and to members of the Free Speech Coalition. It is therefore possible that the government may attempt to enforce the recent 2257 regulations against any "secondary producers" who are not Free Speech Coalition members. It is not clear if someone who now joins FSC for the first time is covered by this ruling, but an argument could easily be made that that is the case.
The other major victories are in the areas of live Internet chat rooms and webmasters who don't produce their own content.
As to the chat rooms, Judge Miller has ruled that to keep a "copy of the depiction" of the immense quantity of material generated creates an undue burden on a "chat room" operator, by which is meant "a performer on the Internet who engages in printed or telephonic dialogue with a customer while a simultaneous video image of the performer is transmitted." This would seem to include, at the very least, performers who have live webcams transmitting from their homes, as well as companies that employ performers to talk or write to customers while simultaneously posing in front of a webcam.
"It is a reasonable reading of the new regulation, however, that it requires the producer of the 'digitally-or computer-manipulated image, digital image, picture or other matter that contains a depiction of actual human being engaged in actual sexually explicit conduct' maintain a 'copy of the depiction'," Judge Miller ruled. "Plaintiffs assert that to do so would involve extraordinary computer capacity of terabytes (1 trillion bytes) and petabytes (1 quadrillion bytes) on an annual basis which could cost as much as $15 million dollars annually. Defendant does not present any contravening testimony concerning chat rooms. This evidence may present a substantial likelihood that the regulation is not narrowly tailored with regard to chat rooms since it may well burden substantially more speech than is necessary to further the government’s legitimate interest."
The key to that portion of the ruling is the amount of the burden imposed versus the fact that much of the webcam footage has nothing to do with sexually explicit conduct.
"It is not disputed that the performer is often engaged in conduct or actions which are not sexually explicit," Judge Miller noted. "Further, as the government has argued, it does not seek to ban any expression but rather combat child pornography. Particularly with regard to the circumstance of the chat room, a narrow tailoring may well require no more than the identification of the performer as otherwise prescribed without the necessity of maintaining a copy of the entire time of depiction. Without deciding precisely how such a regulation may be constitutionally tailored at this juncture of the litigation, I simply conclude that plaintiffs have established a substantial likelihood of success on this particular issue."
When the new 2257 regulations were published, content producers were furious about the requirement that they keep "a copy of any URL (or other identifying reference) associated with a depiction published on the Internet, regardless of whether the producer has control over the website which posts the depiction."
Judge Miller noted that although the 2257 regulations are not clear as to which URLs a webmaster is required to keep a list of regarding any particular sexually explicit depiction, the government essentially conceded, at the Aug. 2 hearing that was held in this matter, that "producers were only responsible for recording those URLs from websites which they themselves controlled."
"Defendant’s expert witness testified that it would be impossible to comply with this requirement," Judge Miller noted. "Therefore, I consider Defendant's representation at the hearing that the regulation does not require producers to maintain copies of depictions on websites outside of their control a concession that such a requirement would be invalid and that he may be enjoined from enforcing such a requirement. Consequently, to the extent §75.2(a)(1)(ii) requires a producer to maintain records of URLs or other identifying information from websites outside of the producer’s control, Plaintiffs have demonstrated a substantial likelihood that this is overly burdensome."
This is a blockbuster of a ruling! It appears to say that, for example, a content producer which does not maintain its own websites but merely sells content to others is required to keep 2257 records of the performers it hires, but the webmasters who post that material on the Web are not. Further, in such a situation, the content producer is not required to keep lists of any URLs, since none of the sites on which the materials appear are under its control, and the webmasters, who are not "producers" under this ruling, also are not required to keep lists of the URLs where the material appears, nor are they required to keep the identification records.
Sadly, Judge Miller's ruling has several questionable assertions and conclusions which the plaintiffs will likely appeal, revolving largely around the plaintiffs' First Amendment and privacy rights.
"Plaintiffs argue that §2257 and the regulations unlawfully infringe upon rights protected under the First Amendment," the judge writes. "They first claim that the substantial recordkeeping obligations make compliance impossible, and thus operate as a 'prior restraint' by inducing self-censorship chilling protected speech. However, it is clear that the statute and regulation do not constitute a 'prior restraint' as traditionally described by the Supreme Court... Plaintiffs place great reliance on Ashcroft v. Free Speech Coalition, where the Court held that 'government may not suppress lawful speech as the means to suppress unlawful speech.' However, Ashcroft dealt with an express ban on computer-created, or 'virtual' images of child pornography, not regulations like those in this case, which although they may burden Plaintiffs’ expression, do not simply illegalize it."
This would seem to be a myopic view of Justice Kennedy's words in Ashcroft, since there can be no doubt that the enormous expense involved in record-keeping, indexing and storage must necessarily impact the funds a producer can devote to producing content. Judge Miller cites the growth of the industry during the 10 years that 2257 regulations have been in place, but no one can tell what that growth would have been had producers not had to absorb the expenses associated with 2257 record-keeping.
Judge Miller also rejects the argument that 2257 unconstitutionally shifts the burden of proof that sexually explicit speech is constitutionally protected from the government to the producer by noting that the law and regulations don't "ban" the speech – but when producers can no longer afford to make content because of the expenses associated with 2257 compliance, that would seem to be a de facto, if not de jure, "ban."
Also rejected is plaintiffs' position that 2257 and its regulations are "content-based restrictions which are overbroad and fail to adequately advance the government’s asserted interest." Judge Miller gives a nod to decisions in the Connections Distribution case from the Sixth Circuit and the American Library Assn. case from the D.C. Circuit to conclude that the statute and regulations are in fact content neutral – even when they clearly aren't. He also rejects the idea that 2257 fails to prevent minors from performing in sexually explicit depictions, ignoring the fact that the four minors who have appeared in such depictions over the past 20 years reportedly all had IDs that would have passed muster under the 2257 regulations.
And while Judge Miller, in striking down the "secondary producer" concept, moots the plaintiffs' claim that providing such identification records violates performers' rights of privacy, he fails to fully consider the privacy rights of "producers who work out of their homes by mandating disclosure of the actual place of business on a label" – an insurmountable problem, for instance, for women with bedroom webcams. The judge bases his ruling on the fact that plaintiffs have only identified one instance of identity theft traceable to 2257 records, and Nina Hartley's "vague assertion ... that she is aware 'of a number of instances in the past two decades where adult performers have been stalked by fans.'"
"This is insufficient to establish a reasonable probability of harm resulting from the regulations," the judge writes. Apparently, several performers will have to die or have their identities stolen before this obvious violation of their privacy rights is clear to this court.
On the whole, this is a good decision by Judge Miller, but it seems likely that both plaintiff and defense attorneys will find issues therein that they will want to appeal – so stay tuned to this site for further developments as they occur.
