Based on an April 25 status conference in the case Free Speech Coalition v. Gonzales, the Free Speech Coalition expects U.S. District Court Judge Walker D. Miller to dissolve portions of the preliminary injunction (in place since December 2005) that ordered the Government not to inspect secondary producers. The FSC hastened to add that does not mean inspections of secondary producers are likely in the foreseeable future.
According to the team of attorneys representing the FSC, "We have no reason to anticipate imminent inspections of secondary producers. The reasoning underlying Judge Miller's preliminary injunction remains valid: That is, prior to July 27, 2006, there was no statutory authority for record-keeping by secondary producers. We are awaiting regulations which will announce the Department of Justice's position on what secondary producers' responsibilities are under the July 27, 2006, amendments [to the regulations associated with 18 USC § 2257]."
Added FSC Chairman and First Amendment attorney Jeffrey J. Douglas, "We are all confident that no court would allow a retroactive obligation to be placed upon secondary producers for which there was no lawful authority when they acquired the images. Furthermore, until the new regulations are finalized, how can any secondary know what their obligations are? For instance, they cannot comply with the regulations applicable to primary producers. Actual inspection of the original ID is impossible for a secondary producer."
Should there be any indication the government plans to claim such authority, the Free Speech Coalition promised it will seek another court order immediately. The FSC will provide regular updates on the status of 2257 as the case unfolds through its weekly XPress newsletter, e-mail alerts, and postings on its website.
The status conference, which included FSC and federal representatives, was requested by FSC attorneys in cooperation with government litigators after Judge Miller's ruling of March 30. The ruling dismissed some causes of action and allowed others to proceed in light of the Adam Walsh Act amendments to 18 USC §2257. The Walsh Act amendments became effective July 27, 2006, but regulations for enforcing the act have not been finalized.
