The Free Speech Coalition has brokered a deal with the U.S. government that precludes enforcement of the recently revised regulations pertaining to 18 U.S.C. §2257 against its members until a federal district court rules on the FSC’s request for a preliminary injunction.
An injunction hearing is scheduled for August 8 and August 9, and the deal applies only to those who are members of the FSC by 2 p.m. Pacific time on June 25.
“The agreement, as it stands right now, is that [the government] will not do any inspections and will not initiate any cases until 30 days after the injunction hearing or the judge rules, whichever comes first,” says attorney Michael Gross, who was involved in the negotiations along with Paul Cambria, H. Louis Sirkin, Arthur Schwartz, Roger Wilcox, Reed Lee, Jeffrey Douglas, and Jennifer Kingsley. “If you’re in violation of a law as of today, they can prosecute you for that, but not until [the court issues an injunction ruling].”
According to Paul Cambria, a veteran First Amendment attorney, the 30-day mark is the more likely of the two scenarios—and then only if the court does not extend the term of the agreement between the FSC and the DOJ, which it can choose to do.
“This is a set of complex constitutional issues, and we really don’t anticipate a decision [by the court] sooner than 30 days after the hearing,” Cambria says. “We don’t know exactly how long it will take; it could take much longer. I would not be surprised if it took several months because of the complicated nature of the issues involved.”
Meanwhile, nonFSC members may still be inspected and prosecuted.
“It’s hard to tell what the government is going to do, but they’re certainly retaining that option,” according to Gross.
Eleventh-hour agreements aren’t necessarily rare, but they’re not entirely common, either. “[Agreements aren’t] automatic,” Cambria says. “It has to be a meritorious case, which this obviously is. This [agreement] is a responsible way for both parties to litigate. In civilized litigation, this is how it’s done—either ordered by the court, or the parties decide to agree to it.”
The agreement is bound by the Rules of Civil Procedure, which govern the conduct of all civil actions brought in federal court and state that only the plaintiffs are covered by decisions. The same sort of thing happened in American Library Association v. Reno, according to Cambria.
“It’s not our intention to leave anybody out in the cold and we’re doing the best we can to protect the industry, but we have to follow the law because that gives us the best shot,” says Michelle Freridge, executive director of the FSC.
Under the terms of the deal, the government will have to submit the name of any entity whose records it wishes to inspect under the 2257 regulations to a special master—typically a retired judge appointed by the court and agreed upon by both parties. The special master, who will receive the FSC membership list on June 29, will tell the government who it can and cannot inspect based on that list.
Those close to the negotiations told AVNOnline.com that Paul Cambria was largely responsible for hammering out the deal.
“He and [Assistant U.S. Attorney Sam] Kaplan were the ones that hammered this out, but he got lots of support, with a lot of people providing all kinds of different functions,” Gross says.
Cambria himself is pleased with the outcome. “This is the result we were looking for at this stage,” he says. “We’re very confident in the substance of our arguments, and some things may be able to be agreed upon instead of litigated.”
As an example, he cited the regulations’ requirement that foreign actors must provide a U.S.-issued document proving their age for all content manufactured between 1995 and now. The government already has agreed, in documents submitted thus far, that the requirement is a bit much. Instead, it will require U.S.-issued documentation for foreign actors only from June 23, 2005, forward.
“We feel like we’ve already accomplished quite a bit,” Cambria says. “More clarifications like that will be sought by us.”
The deal was said to be in the bag as of Wednesday evening, but the final details of the arrangement weren’t finished until shortly before the scheduled 1:30 p.m. CST hearing originally scheduled to make a decision regarding the FSC’s request for a temporary restraining order. A close observer of the negotiations says that the final sticking point was the cut-off time for new members to join the FSC and be protected under the deal, which was much sooner than the FSC wanted, but a concession deemed necessary.
Observers, such as First Amendment attorney Joe Obenberger, feel the government struck the deal to avoid being dealt a setback in its attack on the industry.
“The government would not have entered into this unless the government thought they had something to gain by bypassing a hearing, and I think we all know the government avoided embarrassment,” he says. “They would have lost, and they would have lost big. This provides a sure protection in the short term for FSC members.”
