With the filing on Thursday of the Free Speech Coalition's (FSC) massive lawsuit challenging the new regulations drawn from – and indeed, the very existence of – the recordkeeping and labeling law, 18 U.S.C. §2257, the adult industry prepares for a legal battle that may determine whether it can survive against the onslaughts of the Bush administration's anti-adult agenda. Certainly, it will determine the industry's profitability for decades to come.
The suit, Free Speech Coalition et al v. Gonzales, which was filed in the Tenth U.S. Circuit Court of Appeals, lists as plaintiffs the Free Speech Coalition; the Free Speech Coalition of Colorado, an FSC affiliate; David Connors, better known to the adult video industry as Dave Cummings, the ex-army colonel who became an adult performer in his early sixties; and Lenjo, Inc., better known to the adult video industry as distributor New Beginnings.
The lead attorneys in the suit are Paul Cambria and H. Louis Sirkin, who together have more than 40 years experience in dealing with adult entertainment issues. They and their associates – notably Jennifer Kinsley of Sirkin's office, and Roger Wilcox and Barry Covert of Cambria's – have been working for nearly one month straight on preparing the suit for filing, and have consulted with more than a dozen prominent First Amendment attorneys from around the country.
The Tenth Circuit was selected based on the fact that in 1998, that circuit ruled that Sundance Associates, a publisher of swingers magazines, was correct in claiming that, in republishing the sometimes sexually-explicit photos of adults seeking other adults who might wish to engage in intimate contact with each other, the company was not subject to the jurisdiction of 18 U.S.C. §2257, and that the Department of Justice (DOJ), under the leadership of then-Attorney General Janet Reno, had overstepped its bounds in separating the definition of the word "producer" in the law into "primary" and "secondary" producers in the DOJ's regulations.
The Justice Department, under the stewardship of Attorney General Alberto Gonzales, specifically rejected the Sundance ruling in promulgating its updated regulations, which are due to take effect on June 23, stating that "the D.C. Circuit in American Library Ass'n v. Reno implicitly accepted that the distinction between primary and secondary producers was valid."
"We were somewhat surprised they didn't appeal the Sundance decision in 1998," noted attorney Michael Gross, who with partner Arthur Schwartz won the Sundance Associates v. Reno case, and is one of the attorneys working on the current lawsuit, "but I think the reason they didn't appeal was because they weren't going to win. But we're dealing with a whole different team in the Department of Justice right now."
However, Judge Walker Miller, a Clinton appointee who will preside over the FSC v. Gonzales lawsuit, is bound by the Tenth Circuit's decision in his consideration of FSC's application for a temporary restraining order (TRO) against the new regulations. Moreover, since one version of the regulations has been in existence since 1995, and many sections of the new regs are substantially similar to those, and since the Justice Department, in the 10 years of the regs' existence, has not sought to conduct even one investigation of an adult company under 2257, it seems likely that Judge Miller will enjoin enforcement of the entire statute, at least until the trial of the case, or until a higher court may vacate such order.
Plaintiffs have asked for a TRO on both the new regulations and the statute itself; an order that would apply to both the plaintiffs and all members of the Free Speech Coalition. A hearing on the TRO has not been scheduled at press time, but is likely to occur early next week.
"The judge that we have drawn is in the middle of either a trial or a hearing, and we've been informed that he has not had an opportunity to look at our papers yet," Cambria reported, "so we're still awaiting some direction from the judge. Lou [Sirkin] and I are poised to travel there at a moment's notice, and together with Mike Gross, we're going to argue the motion."
"Lou and I get to work together again, which we haven't done in a couple of years, and I'm looking forward to it," he continued, "and what's nice is, Mike handled the Sundance case that we're relying on, so it's nice to have the jockey whose horse you're riding."
The government will be represented by Sam Kaplan, an Assistant U.S. Attorney with the Civil Federal Programs Division.
"The most obvious things for us to argue are going to be retroactivity and the Sundance issue," Cambria noted, "especially since the Tenth Circuit has already determined that the 'secondary producer' aspect of it was unconstitutional as 'unauthorized', and that is binding precedent here."
Adult websites, blogs and chat rooms have been rampant with discussion of the effects of the new regulations, with a multitude of questions asked and objections raised to certain portions of the regs. Nearly every attorney in the country who deals with the adult entertainment business has been barraged with questions from clients, and a core group of those attorneys has been collecting such concerns, nearly all of which appear as claims in the FSC lawsuit.
But the main charge in the suit is to the entire concept of 2257: that protected sexual speech has been burdened with a regulation that, in essence, requires it to prove itself innocent of using minors in its creation, rather than requiring the government to meet its constitutional burden of proving the speech guilty.
"18 U.S.C. §2257 has created a presumption that otherwise lawful expressive works containing visual depictions of adult performers engaged in actual sexually explicit conduct cannot be lawfully produced or disseminated to adult consumers unless the dossier and label required by 18 U.S.C. §2257 are created and maintained," the lawsuit states, "... thereby burdening constitutionally protected speech with a presumption of unlawfulness that may be overcome only by the producer’s production of the dossiers and label mandated by law."
"Indeed, requiring twenty-, thirty-, forty-, fifty-, and sixty-year-old performers to divulge personal information and identification documents to producers of regulated expressive works is not a narrowly tailored means of promoting a legitimate and compelling government interest in child protection," the suit continues, noting also that the requirement "is not a narrowly tailored means of promoting a legitimate and compelling government interest in child protection."
Given the enormous scope of the regulations, and the unlikelihood that they will prevent one single minor from appearing in a sexually-explicit depiction – the four minors who did manage to sneak into the adult video industry in the past 20 years reportedly all had identification documents that would have passed muster even under the new regulations – the lawsuit urges the court to find that, "The predominate intent of 18 U.S.C. § 2257, together with the definitions set forth in 18 U.S.C. § 2256, is interference with, and suppression of, expression protected by the First Amendment of the United States Constitution."
Another First Amendment consideration is the "chilling effect" of the regulations, which have already prevented several potential adult producers and webmasters from creating or using material that might fall under the 2257 guidelines.
After noting the tremendous burdens placed on adult producers in terms of assembling records, indexing them, maintaining them and the "copies" of the works to which they refer, and the requirement that businesses be open for records inspections at least 20 hours per week, the lawsuit argues, "The burdens imposed on producers by 18 U.S.C. § 2257 and 28 C.F.R. Part 75, as set forth in the final rules of the Attorney General effective June 23, 2005, are unwarranted and chill the exercise of First Amendment rights by law abiding citizens."
But the First Amendment is not the only one impacted by the new regulations, as well as the 2257 law itself.
"The records that producers are required to maintain by 18 U.S.C. §2257, including copies of visual depictions containing actual sexually explicit conduct ... may be used against a person accused of violating the obscenity laws contained in Chapter 71 of Title 18 of the United States Code, and the child pornography laws contained in Chapter 110 of Title 18 of the United States Code," the lawsuit notes. "The Fifth Amendment of the United States Constitution prohibits the government from compelling a person to be a witness against himself."
Therefore, "The obligation to maintain records of the production of visual depictions of actual sexually explicit conduct imposed on a producer by 18 U.S.C. §2257 and its regulations compels the producer to collect evidence that the government is authorized to use against him in a prosecution for a claimed violation of Chapter 71 or Chapter 110 of Title 18."
And then, of course, there are the search and seizure requirements of the Fourth Amendment that the new regulations specifically violate.
"28 C.F.R. §75.5(a) of the Attorney General’s final rule effective June 23, 2005 authorizes warrantless searches of any establishment, including a home or residential location, where the records required by 18 U.S.C. §2257 are kept," the lawsuit argues. "Plaintiffs have a reasonable expectation of privacy in the private areas of their businesses and in their homes. These investigations are permitted to occur absent any probable cause or particularized suspicion to believe that the records are out-of-order, incorrect, or non-compliant."
The Fourth Amendment reads, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
However, searches under 2257 would be warrantless, unreasonable (since adult material is presumed to be constitutionally protected, absent being declared obscene by a jury), without probable cause, and carried out by Justice Department investigators with no prior judicial oversight.
The lawsuit also deals with a number of specific issues surrounding the new regulations, especially regarding their conflicts with the prior regulations that have been in effect since 1995, as well as the actual law passed by Congress.
For example, the whole question of what constitutes an acceptable identification document for a performer is dealt with in several of the suit's claims.
"In exceeding his authority under 18 U.S.C. §2257, the Attorney General has promulgated a final rule that is far more burdensome and restrictive than the statutory scheme enacted by Congress, especially as to foreign performers and foreign productions of expressive works," the lawsuit states. Another paragraph challenges the fact that non-government-issued picture IDs were acceptable under the old regulations, but not the updated version – and the fact that there is nothing in the new rules that exempt prior productions which accepted, for example, college ID cards from complying with the new definitions of "picture identification."
"The picture identification card requirement of the Attorney General’s final rule effective June 23, 2005, also applies retroactively to all visual depictions of actual sexually explicit conduct made after July 3, 1995," the lawsuit contends.
Therefore, between the prohibition on using performers with IDs issued by foreign governments, and the unacceptability of any ID except those issued by a federal or state government agency, the new regulations could result in more than half of the adult video product currently on the market being declared non-compliant with the 2257 regulations.
"What we've tried to present in our TRO are what we think are the least controversial, least contradictable issues," Cambria explained, "and to say to the Court, 'Look, these are solidly decided, such as Sundance, and we feel a temporary restraining order and eventually a preliminary injunction should be issued. However, we have all these other issues and we feel just as strongly about those, but these that we're emphasizing seem to be the least challengeable, so we're trying to simplify it to that which seems to be unassailable."
The ID question is central to another section of the lawsuit, which deals with personal privacy and identity theft. After noting that "primary producers" would be required to disclose performers' identification documents potentially to thousands of "secondary producers," the lawsuit notes, "Neither 18 U.S.C. §2257 nor the 28 C.F.R. Part 75 regulations set forth in the Attorney General’s final rules effective June 23, 2005, mandate privacy protection measures guaranteed to protect the performers from improper dissemination of their personal information and abuse or misuse of the information contained in records maintained as required by 18 U.S.C. § 2257 and the Attorney General’s regulations."
"Consequently, all of the thousands of secondary producers required to obtain and maintain a copy of the performers’ personal information dossiers will have access to the performers’ legal names, dates of birth, maiden names, stage names, professional names, and aliases," the suit states. "The widespread disclosure of performers’ sensitive personal information required by 18 U.S.C. § 2257 and the Attorney General’s regulations, including foreign performers, also conflicts with privacy rights afforded individuals by the European Union, Canada, and various other nations."
That last point, as well as the prohibition on foreign performers, points up the fact that the new regulations appear to violate several international treaties.
"By excluding foreign-issued identification cards from the list of approved documents to verify a performer’s age and identity, 28 C.F.R. §75.1(b) eliminates the ability of foreign nationals to create expressive works depicting sexually explicit conduct in the United States," the lawsuit argues. "In addition, by requiring the disclosure of personal information without a performer’s consent, 28 C.F.R. §75.2(b) violates the Canadian Personal Information Protection and Electronic Documents Act and the European Union Data Protection Directive of 1998."
And then there are the definitional objections. Among the words and phrases used in the new regulations, and challenged in FSC's lawsuit, are: "URL"; "copy," as in "copy of any URL associated with the depiction" and "copy of the depiction"; "date of production"; "producer," as in "primary producer" and "secondary producer"; "homepage"; "major known entry point," as a corollary of "homepage"; and "assisting another person to engage in," as in the definition of "performer," which includes "any person portrayed in a visual depiction engaging in, or assisting another person to engage in, actual sexually explicit conduct." Would that include the producer who hires the performer? The director? The make-up artist?
Producers of compilations videos, which by some reckonings account for more than half of all adult titles released each year, could be in for an exceptionally hard time under the new regulations, according to another claim in the FSC lawsuit.
"Plaintiffs and others commonly produce 'compilation' videotapes, films, and DVDs that contain multiple scenes containing visual depictions of actual sexually explicit conduct from different movies," the lawsuit notes. "The final rules adopted by the Attorney General do not specify the appropriate method of labeling compilation videotapes, forcing the producers of such compilations to either risk choosing the wrong method or foregoing production altogether."
Look for further updates of this all-important story as soon as information becomes available.
