[Note: One voice not yet heard from in the 2257 debate is the one that launched the industry's first attack on the then-new regulations: Attorneys Arthur Schwartz and Michael Gross give their experiences in their successful battle against the "secondary producer" concept, and tell why the law must be challenged in its entirety.]
DENVER - With all of the discussion about the new regulations concerning 18 USC 2257 and Sundance Associates v. Reno, 139 F.3d 804 (10th Cir. 1998), it is important to read what the Sundance case actually says. Sundance determined that it was beyond the power granted by the Congress in the statute for the Attorney General to promulgate regulations that created, out of thin air, the definition of "secondary producer" that contradicted the express terms of the statute. In Sundance, the United States Court of Appeals for the Tenth Circuit in Denver stated, "The government's approach leads us down a path toward Alice's Wonderland, where up is down and down is up and words mean anything." The Court explained in detail:
"The Attorney General's regulatory definition of producer follows the statute in establishing a class of individuals and organizations possibly subject to the record keeping requirements, but it fails to exclude persons from the class that the statute requires. The regulation conditions its exclusion of those 'not involve[d in] the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers' to persons who are not a primary or secondary producer. 28 C.F.R. § 75.1(c)(4)(iii). The statute makes no such condition. This is not a minor matter, because ... the practical effect of the regulatory scheme is that the exclusion cannot be applied to anyone. '[A]n agency's interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear.'"
"Attempting to justify its regulation, the government urges upon this court a tortured reading of the statute. The government contends the second part of § 2257(h)(3), beginning with 'does not include mere distribution,' was actually intended to broaden the scope of the statute. ... In reviewing statutes, courts do not assume the language is imprecise, as the government would have us do. Rather, we assume that in drafting legislation, Congress says what it means. This is not a case of verbal ambiguity presenting accepted alternative meanings; it is one of an agency twisting words to reach a result it prefers. Although § 2257(h)(3) was poorly drafted and should never be used as a model of the English language, its intent is clear to this court. One wonders, looking at the regulation, why the government did not follow the logic of its own argument when implementing the regulation."
This is about as clear a repudiation as will be found in any appellate decision. The decision was written by Wade Brorby, a Reagan appointee from Gillette, Wyoming who will never be known as a radical civil libertarian. The other judges on the unanimous panel were a Reagan appointee from Roswell, New Mexico and a senior district judge from Topeka, Kansas (who at oral argument compared the content of Sundance's publications to the conduct of farm animals in the barnyard). The Tenth Circuit affirmed the decision of District Court Judge Edward Nottingham, a Bush I appointee from Grand Junction, Colorado. The Justice Department chose not to appeal to the Supreme Court because they believed they would lose. Sundance has never been challenged since that time, nor have any prosecutions ever been commenced under the statute or regulations. Not a single prosecution has been initiated since the Sundance case in 1998. It took the Bush regime four and one half years to get new regulations in place. Credit for this peace should go to the late Bob Tremont of Sundance Associates who was the driving force behind the lawsuit to benefit the entire industry. Based upon the new regulations, Attorney General Alberto Gonzales apparently resides in Alice's Wonderland discussed by the Tenth Circuit "where up is down and down is up and words mean nothing." The new regulations ignore the unequivocal rejection of the definition of secondary producers by the "radical activist" judges from Gillette, Roswell, Topeka, and Grand Junction in Sundance and, instead, find the District of Columbia Court of Appeals "implicitly" endorsed this concept in the earlier case of American Library Association v. Reno, 33 F.3d (D.C. Cir 1994), where this point was not even discussed as an issue. This is no big surprise coming from the current regime that has, at times, endorsed torture and rejected the Geneva Convention.
What makes this journey into Alberto's Wonderland truly surrealistic is that some lawyers charged with defending the constitution and the industry from this assault seem to embrace (with some glee) the new regulations in rejecting the Sundance case. Certainly the expansion of the definition of secondary producers will benefit the 2257 appeasement/compliance crowd, but will greatly expand the scope of the regulation and put many in danger of going to prison. Another troubling aspect of the discussion of the new regulations is the fact that we have let the government completely define the terms of the debate. While the industry once had the initiative after the Sundance case and was in a position to directly attack 18 USC 2257, we are now reduced to a reactionary debate concerning compliance and survival under the new regulations. The subject of the debate should be why hasn't a court been given the recent opportunity to strike down this ridiculous offensive statute, particularly in light of the recent Supreme Court decisions in Free Speech Coalition v Ashcroft and City of Los Angeles v. Alameda Books. We have allowed the government to set the terms of the public debate. We have lost the initiative, surrendered the battlefield, and given up the high ground. Instead of talking about this sweeping attack on our right to free speech, we are reduced to analysis of details such as typeface size and proper documentation for non-US citizen performers.
The impact of 18 USC 2257 is that it converts the sale of one category of protected speech into a criminal offense if a producer (or "secondary producer" in Alberto's Wonderland) does not have certain papers. The fact that there is absolutely no question all performers are consenting adults who are well over the age of 18 is not a defense. If the documentation does not exist, the dissemination of protected speech is a crime.
It is not too late to take a stand, even though invalidation of 18 USC 2257 would crush the cottage industry that has developed for appeasing the government and complying with 2257. So far this has not happened through any proactive efforts of the industry, but it will inevitably happen through the efforts of individuals who are facing prison sentences for exercising their rights guaranteed by the United States Constitution. We do not foresee any of these criminal cases being brought in the Tenth Circuit where Sundance remains the law, notwithstanding the opinions of Alberto Gonzales and others. After being reminded of the cost of freedom over this Memorial Day holiday and reflecting on Bob Tremont's living legacy of Sundance, we can only hope that at this time next year, individuals will not have been forced to surrender their freedom under the labeling statute.
Arthur Schwartz and Michael Gross are with the Denver-based law firm of Schwartz and Goldberg, P.C. Mr. Schwartz has practiced First Amendment law for 50 years and argued the Sundance case in the Tenth Circuit. Mr. Gross has worked in this area of law for over 20 years and was involved in the Sundance case. Both attorneys recently handled City of Littleton v. Z.J. Gifts, LLC and Encore Videos, Inc. v. City of San Antonio, in addition to countless other obscenity, and First Amendment zoning and licensing cases. They can be contacted at 303-893-2500
[Note: One voice not yet heard from in the 2257 debate is the one that launched the industry's first attack on the then-new regulations: Attorneys Arthur Schwartz and Michael Gross give their experiences in their successful battle against the "secondary producer" concept, and tell why the law must be challenged in its entirety.]
