The last few minutes of yesterday's hearing on plaintiffs' motion for a preliminary injunction in the case of Free Speech Coalition v. Gonzales had to be embarrassing for Department of Justice (DOJ) trial attorney Samuel C. Kaplan.
Judge Walker D. Miller, who will decide whether to issue an injunction that will extend beyond the September 1 expiration of the agreement currently in place – a ruling he has promised to make within a few weeks at the latest – was questioning Kaplan about producers' duties to maintain lists of URLs at which appear sexually explicit images, under the revised regulations issued by the Justice Department pursuant to 18 U.S.C. §2257.
Plaintiffs had argued that the recordkeeping burden for webmasters under the 2257 regulations was enormous, since the regs require them to maintain and index the URL of every appearance ("iteration") on a Web page of an image of actual human beings engaged in actual sexually explicit conduct, and to keep an electronic copy of every such page. Since such pages are sometimes changed daily – or hourly! – though keeping the same URL, producers would be required to keep dozens or possibly hundreds of copies of pages with the same URL as long as hardcore images appeared on them.
But when Judge Miller asked about that claim, using as an example a single image depicting one man and one woman having sex on a page with several other similar images, Kaplan demurred.
"In so far as that one picture is concerned, and you keep surrounding it with different pictures," Kaplan said, "you don't need to maintain screen shots of all those depictions." He claimed that only recording the URL was necessary.
"Let's assume a particular depiction is on several different websites," the judge continued. "Do you need to maintain a list of URLs?"
Kaplan responded that if the same producer put the image on several different websites, yes, he would have to maintain a list of the URLs of all of those sites; however, he would not be responsible for listing the URLs of other sites where the image might appear that were not under his control.
Those responses set off a flurry of activity at the table where the plaintiffs' attorneys were seated, and as soon as Kaplan had finished his presentation, plaintiff co-counsel Paul Cambria was ready to refute those statements.
"You put your finger right on the question of the URLs," Cambria observed, "and your answer is on page 29617 of the Federal Register, which sets forth 28 CFR Part 75 [the new 2257 regulations], which begins on page 29607. In the section that's the Justice Department's 'Response to Public Comments on the Proposed Rule', there is the following language: 'One commenter commented that it is unclear whether a producer that provides content to a secondary producer must maintain a list of its URLs. According to the commenter, keeping such a list would be impossible, given the number of URLs and the fact that many URLs are generated dynamically, making the requirement technologically impossible. Further, claimed the commenter, if a URL is required to be indexed with an identification record, one URL (the site entrance) should be sufficient. In addition, the commenter commented, URLs outside the direct control of the content provider should not be covered under the regulations, and secondary producers should be permitted to simply list the producer's 2257 statement on the home page. The Department declines to adopt this comment.' That's exactly the question you asked."
Cambria went on to note that the government's expert witness, Howard Schmidt, had admitted that it would be impossible to identify all of the URLs associated with a particular image.
Cambria also took issue with Kaplan's assertion that it was unnecessary to save copies of all the Web pages on which a particular image appeared, referring the court to the Justice Department's comment on page 29610 of the Federal Register, which read, "In addition, thirty-three commenters commented that it is unclear whether the term copy in the rule refers to only digital images, computer-generated images, and web cam images, or whether there must be a copy of the image that was in the magazine and film in the records, as well. The Department has amended the rule to clarify that there must be copy of any and every depiction, whether digital, computer-generated, print in a magazine, or on film. Maintaining copies of each depiction is critical to making the inspection process meaningful, whether those copies be in digital, paper, or videotape format. Reviewing identification records in a vacuum would be meaningless without being able to cross-reference the depictions, and having the depictions on hand is necessary to determine whether in fact age-verification files are being maintained for each performer in a given depiction. In addition, without the depictions, inspectors could not confirm that each book, magazine, periodical, film, videotape or other matter has affixed to it a statement describing the location of the records, as required by the existing regulations."
"So every iteration, you must have a copy of," Cambria summarized. "So if you change one picture, that is a new iteration and you must maintain a copy of it."
Kaplan's response? "This iteration point is important. Mr. Cambria referred to the commentary. This isn't the best written commentary I've ever seen," he admitted. "What's more important is what the regulations say. The commentary may not be crystal clear but the regulations are clear."
Sadly, that was the wrong answer.
"Joint Exhibit 1 is a letter from Mr. Kaplan," Cambria said as he retook the podium. "We asked several questions [about various sections of the regulations]. His response was to refer us to the commentary."
Kaplan then asked the judge for permission to respond to Cambria's statement, but the judge refused, and shortly, the hearing was adjourned.
But while the ending was certainly the icing on the cake, what came before was nearly as gratifying.
For one thing, the array of legal talent at the plaintiffs' table was impressive. Besides Cambria and his associate Roger Wilcox, the FSC team included lead counsel H. Louis Sirkin and his associate Jennifer Kinsley, plus Arthur Schwartz and Michael Gross, who had won Sundance Associates v. Reno, the victory over the "secondary producer" concept in the first set of regulations that went into effect in 1995.
Even more legal talent was seated nearby: FSC board chair Jeffrey Douglas, FSC board member Reed Lee, and the oft-quoted legal expert on the adult Internet, Greg Piccionelli.
It had apparently been decided the day before, while the attorneys were frantically duplicating and collating (and highlighting portions of) the pretrial examinations of the plaintiffs' witnesses, the government's expert and various exhibits, that Gross would lead off the hearing with a discussion of Sundance. The fact that the 10th U.S. Circuit Court of Appeals, with jurisdiction over this district court, had upheld the challenge to the "secondary producer" concept meant that Judge Miller was almost duty-bound to grant an injunction on that portion of the revised 2257 regulations.
Gross, as expected, argued that very point, adding that nothing in the law had significantly changed to cast doubt on the 10th Circuit's logic in reaching its conclusion, and that if anything, subsequent cases such as Elrod v. Burns had stated that "the vindication of First Amendment freedoms is clearly in the public interest."
"Assuming I agree with you that I am bound by the Sundance decision," Judge Miller asked, "don't I cure the problem... by just granting you the relief requested to the extent of not including the secondary producers ... and if I agree that the other elements [of the government's objections] are shown, doesn't that satisfy my obligation to follow the 10th Circuit?"
"Certainly Sundance doesn't deal with the other issues in the case," Gross replied, "but the constitutional issues remain in this case."
The judge continued to probe into issues that Gross had apparently not been specifically delegated to answer. Gross had earlier stated that he would be arguing Sundance, that Sirkin would lay out the constitutional issues, and that Cambria would follow up with specific examples of the ways in which the regulations burdened protected speech – but Gross gamely responded, arguing that the court should enjoin the entire regulatory scheme, since he expected that plaintiffs would succeed on the merits of their case, and that since the government had never enforced even the earlier regulations, neither it nor the public would be harmed if such enforcement was forced to wait until after the trial of the case.
"The public interest is in upholding the First Amendment, speech protected by the First Amendment," Gross argued. "The government's own expert agrees that adult producers don't make child pornography."
Gross also noted that the Supreme Court had declared in Free Speech Coalition v. Ashcroft – the Child Pornography Prevention Act (CPPA) case – that "just because children may be involved doesn't mean you can trample the First Amendment."
The court allowed Kaplan to respond to each speaker's points, and he began by claiming that "It is the plaintiffs' position that if somebody films a child engaged to sexual activity and sells it to a website, and the website publishes it to the world, the website has no obligation ... to verify the ages of the performers in the depiction."
Kaplan had prepared a DVD with excerpts from 19 websites that depict young-looking teens engaged in various types of sexual activity, and brought up on the courtroom video display a notice on one of the sites that claimed that since the site was not a "primary producer" of the content, it was not required to keep identification records of the performers.
Kaplan also argued that between the opinion in the 1994 case of American Library Association v. Reno, Congress' inclusion in the PROTECT Act of 2003 of changes to the wording of the 2257 law, plus its requirement in that Act that the Attorney General report to it, one year after the Act's passage, of the number of Justice Department investigations of adult companies 2257 records and the prosecutions that resulted therefrom, the totality of those events essentially overruled the 10th Circuit's opinion in Sundance. Therefore, he claimed, the Justice Department was free to interpret the wording of "produces" in the 2257 statute to include both "primary" and "secondary" producers.
"Congress, looking at the entire background, demonstrated that it was acquiescing to the interpretation of the Department of Justice" in creating its 2257 regulations, Kaplan argued. "The important question is not what Congress was thinking in 1990 [but] what it was thinking in 2003."
The plaintiffs, Kaplan said, "are ignoring Congress, what Congress intended with the PROTECT Act. ... "Yes, the legitimate adult porn industry doesn't produce child pornography. But it's Congress' views that matter, and it is the government's position that this court should give deference to their views."
When Sirkin took the podium, he laid out his clients' claim in a nutshell.
"Clearly what we have here is a statute that bans protected speech on the idea you can't produce it even though you're using people that are over 18 and it's not obscene, simply because you don't have the records to prove that the performers are not children," Sirkin summarized.
The judge, however, wanted to know whether Sirkin was asking him to grant the preliminary injunction, or actually to overrule the 2257 statute.
"If you're arguing that I need to go back and strike a statute," the judge asked, "aren't you disturbing the status quo and doesn't that require a higher order of proof?"
Sirkin replied that while he wasn't asking the judge to overturn the statute at this point, the reasons he would give for the statute's eventual demise were in fact the very reasons for which Judge Miller should grant the injunction against the regulations.
"I want to revisit the issue of whether 2257 identifies a content-based regulation, and therefore should be analyzed on the basis of strict scrutiny, and whether the statute is narrowly tailored to fulfill a governmental need," Sirkin listed. "What it's done is, the statute bans protected speech, and when that happens, the court has to take it on the basis of strict scrutiny."
Government restrictions on speech may be looked at ("scrutinized") in two ways: Either intermediate scrutiny, a lesser standard, or strict scrutiny, which places an onus on the government to show that its need to prevent the communication is overwhelmingly greater that the constitutional protection that speech would normally enjoy.
But, Judge Miller asked, the purpose of the regulations is to identify situations where a minor is used; isn't that a legitimate government purpose that is not content based?
"Not if it totally bans protected speech," Sirkin replied, quoting from Justice Anthony Kennedy's opinion in the CPPA case, where the high court found that, "Congress may pass valid laws to protect children from abuse, and it has. The prospect of crime, however, by itself does not justify laws suppressing protected speech."
"There's compelling interest to protect children, but there's also a compelling need to protect the First Amendment," Sirkin said.
When Kaplan's turn came, he did his best to distinguish the present action from the CPPA case.
"It is worlds apart from the Free Speech v. Ashcroft case," Kaplan said. "We keep hearing that it bans speech, but there has been no work produced to this court that cannot be distributed or produced or manufactured or sold."
The presumption, Kaplan claimed, is that everyone in the movies or images at issue is over 18. "We don't know that," he said. "The purpose of this statute is simply to insure the performers are 18 or older."
"Do you agree there is absolute liability if you don't comply with the regulation, even if minors are not involved?" the judge asked.
You need to have the records, Kaplan admitted, but, "It is not a ban; you are able to distribute and possess it as well. It's not prohibiting any message and it's fully under your control whether you have the records or not."
"If the primary producer gets the records, complies with the statute and the regulations and the secondary producer who isn't involved with the performance duplicates or whatever, he would be subject to punishment because he failed to comply with the required regulations even though no minor was involved; am I correct?" the judge pressed.
"In that case, if the secondary producer has not maintained a copy of the records ... if they never secured a copy of the records ... that is correct; they violate the statute by not having the records," Kaplan agreed.
The hearing's most impressive speaker, however, was Cambria, and when his turn came, he aimed right at the heart of the case.
"I don't think there's any doubt that protecting children from being exploited is a laudable and legitimate concern of the government and the citizens," he stated. "However, you can't do that at any cost, and I think that's what the various cases have said from the Supreme Court on down."
Cambria also attacked the idea that 2257 was a necessary tool in the government's arsenal of weapons to fight child pornography.
"It is a fact that for over 13 years and to this day, the government hasn't done one inspection under these regulations and they admit that," Cambria noted. "That indicates, I think, to an ordinary person, that if it was such a significant tool, it would have been taken out of the sheath and used by now."
Cambria then began to detail some of the burdens the new regulations place on smaller adult producers, noting that producer/performer Dave Cummings had testified that it had cost him $150 to keep and duplicate records for every $100 he made from an adult production.
"Speech has never been a rich man's privilege or right," Cambria intoned. "It covers everybody."
As to the regulations' requirement to maintain copies of the sexual depictions produced, Cambria noted that this was not possible with streaming video from, for instance, a porn star's bedroom web-cam, and that the government's own expert, Howard Schmidt, had agreed that that was the case.
"When you have an opportunity to study his deposition," Cambria reported, "if you had a person — talking about live streaming — if you did that 40 hours a week, and there are sites with many individuals doing that 40 hours a week — you would need some 15 personal computers on an annual basis just to record that one person."
"I asked him, 'Assume the regulations say you must capture the image and keep a copy; if you're doing video streaming, can you capture that?' He said no it's not possible to do that. First it's transformed, it's digitized, and on the other end, you would not get the exact image that's being broadcast, even with a video camera on the other end."
Almost humorous was Schmidt's solution as to how to include the necessary 2257 label for live streaming video: To hold up a piece of glass in front of the camera and write the information on the glass!
"This is their expert telling us that its impossible to do all that, to capture all the URLs," Cambria summarized. "I would say that's evidence of an insurmountable burden. ... It's not a justifiable burden to put on protected speech."
Judge Miller then inquired whether Cambria thought there would be any way to construe the law as written so that it could be applied constitutionally?
"I think right now, it's a matter of, is there a likelihood that this regulation burdens free speech and can it be enforced," Cambria replied. "And then the question becomes, can the court construe without amending or substituting — the usual analysis that comes when that happens. I don't think that can happen. The choice is, this is impossible, this is burdensome, this is economically unfeasible, and it chills protected speech ... The government is in no different position than they were in on June 22; they haven't lost anything. These are the same regulations they had for 13-plus years; they never used them, so how are they harmed? On the other hand, there's a new requirement that you must make yourself available for at least 20 hours a week for inspection purposes... [That means] Mr. Cummings could never take a vacation. If he is the custodian, the regulations say he has to be there, so they have a requirement you have to be available 20 hours a week minimum so you can inspect. That's not a narrowly tailored regulation either."
Cambria also delved into the regulations' violations of performers' rights of privacy.
"This is an extremely serious aspect of this... It's a real problem," he said. "What the government is saying is if you are a mom-and-pop producer out of your own house, you have to put down your home address."
Cambria noted several Supreme Court decisions upholding an individual's right of anonymity regarding political speech; a right that goes back to revolutionary times. And yet, he noted, 2257 makes it impossible for a citizen to engage in anonymous sexual speech.
"There has not been a separation [of political and sexual speech] under the First Amendment," Cambria stated. "If it's protected, it's protected, and clearly this material runs the whole gamut including educational material... The same rights and privileges apply."
He went on to note that at least two witnesses, attorney Allan Gelbard and performer Nina Hartley, had testified that they knew of adult stars who had been stalked after their real names had been revealed in public.
"The government shouldn't be able to put people in personal harm by requiring addresses and so forth," Cambria said. "The name would be the least onerous of the requirements. Obviously, the address is a real problem."
Kaplan was then allowed to respond to Cambria's points – not necessarily successfully, as noted above, but observers took note of the fact that both Judge Miller and his law clerk were paying rapt attention to all of the arguments.
"The hearing today went as well or better than we expected," stated Jeffrey Douglas at the conclusion of the day's proceedings. "The issues that we needed to argue before the court were laid out persuasively and passionately. We went into the hearing optimistic that secondary producer requirements, unlawful as they are, would be enjoined, and nothing that occurred in the hearing lessens our optimism. We felt that we had a substantial but smaller chance of having the entire regulatory scheme enjoined. Courts always want to be as conservative as possible when it comes to enjoining a federal regulation, and the judge engaged in appropriate inquiry with our attorneys as to whether or not injunction of the entire scheme were required. We continue to be hopeful that we'll prevail in obtaining an injunction to the entirety of the regulations, and we await the judge's ruling with anticipation."
