It might as well be an official meeting of the First Amendment Lawyers Association.
Monday, August 1, was the day that the biggest names in the adult legal community came to town – and all will be present at the biggest fight the industry has had to muster in many years, in the U.S. District Courthouse here, and more specifically in the courtroom of Judge Walker D. Miller, who holds much of the fate of free sexual speech in America in his hands.
Leading the fight is H. Louis Sirkin, lead counsel for the four plaintiffs in the case of Free Speech Coalition, et al v. Gonzales. Also at counsel table will be Paul Cambria, Sirkin’s associate Jennifer Kinsley and Michael Gross, partner of Arthur Schwartz, who’s largely the reason that all the attorneys have come to this city in the first place.
It was, after all, here in the Tenth U.S. Circuit Court of Appeals that Schwartz and Gross won the case of Sundance Associates v. Reno, the seminal case involving 18 U.S.C. §2257, the federal recordkeeping and labeling law, in which the appeals court ruled that the U.S. Department of Justice (DOJ) had overstepped its authority in dividing the concept of “producer” as defined in the statute into “primary” and “secondary” producer categories. The Tenth Circuit struck down the “secondary producer” concept, and the Justice Department never appealed that decision – though the DOJ now claims that that finding was tacitly overruled by a combination of both the 1994 American Library Association v. Reno case and the wording of one section of the PROTECT Act, which added digital and computer-recorded images to the media covered by the 2257 statute.
It is expected that Gross will handle the arguments regarding the Sundance decision in the hearing which is scheduled to begin at 9 a.m. Tuesday morning. At stake is the preliminary injunction which is currently in effect by agreement of both sides, with the judge’s approval, and which, of no further action is taken by the court, is due to expire on September 1. The plaintiffs will ask the judge to extend the injunction at least until the trial of the matter, while the government will argue that the new 2257 regulations, which technically have already gone into effect for all non-Free Speech Coalition (FSC) members, should be required to be followed by all producers of “actual sexually explicit conduct” involving “actual human beings.”
Originally, this was to be a two-day affair beginning Monday, but an agreement was reached between the plaintiffs’ attorneys, DOJ trial counsel Samuel Kaplan and Judge Miller that the depositions of witnesses Jeffrey Douglas, Allan Gelbard, Nina Hartley, Dave Cummings and government computer expert Howard Anthony Schmidt could be used, rather than bringing each of those individuals to Denver to testify in open court. This agreement cut down the time needed for the hearing to less than one day, and the proceedings today will consist entirely of legal argument supplemented with references to the depositions, trial briefs, exhibits and case law.
However, 65-year-old plaintiff Dave Cummings has come to Denver to observe the proceedings, and to provide a living example of both an individual who would be required under the 2257 regulations to prove that he’s not a minor, and also as a small producer who would be one of those most hurt financially by the regulations.
Other observers in the courtroom will include First Amendment attorneys Greg Piccionelli, Reed Lee (who’s also on the board of FSC), Jeffrey Douglas (FSC board chair), J.D. Obenberger and likely Art Schwartz himself.
Much of the argument to be presented by both sides has already been laid out in pretrial briefs. The plaintiffs will attempt to show the extent of the speech-chilling burdens which 2257 places on the adult industry, in terms of time, money and storage capacity – the government’s expert has already testified that to record 24 hours of streaming video on just 20 websites would require several hundred terabytes of storage space, and that the regulations should therefore be subjected to the strictest form of scrutiny allowed under previous Supreme Court rulings.
The industry attorneys are also expected to argue that the regulations would be ineffective in preventing minors from appearing in sexually explicit videos and images, noting that Traci Lords, the underage actress who arguably inspired the 2257 regulations, would have had no trouble obtaining XXX work under 2257, since she had used a fraudulently-obtained government identification document as proof of her legitimacy.
Finally, the plaintiffs are expected to argue that there is no reason not to continue the injunction, since in the 13 years that 2257 regulations have been in effect, the government has not conducted one inspection nor brought one prosecution under the statute – so a few more months of the same status quo could hardly be argued to be hurting the government’s purpose.
Stay tuned to AVN.com for the latest developments.
