With negotiations lasting nearly to the moment the Free Speech Coalition (FSC) legal team left for the U.S. District Courthouse at 1:15 p.m. today, an agreement to avoid a full evidentiary hearing on FSC’s motion for a temporary restraining order (TRO) was reached between the plaintiffs and the U.S. Department of Justice (DOJ) that will keep the plaintiffs – FSC and its members, FSC of Colorado, distributor New Beginnings and actor Dave Cummings – free from inspections and prosecutions under 18 U.S.C. 2257, the record-keeping and labeling law, until September 7, 2005.
The hearing, at which FSC attorneys and Deputy U.S. Attorney Samuel C. Kaplan, appearing by telephone, entered into a “Stipulation Regarding Motion For Temporary Restraining Order,” which U.S. District Judge Walker D. Miller is expected to sign as an order by the end of business today, concretizes the terms hammered out by the parties in almost round-the-clock negotiations which began yesterday afternoon.
Included is an agreement that the government will not pursue 2257 record inspections or prosecutions of any of the plaintiffs or their members until 30 days after a hearing on the preliminary injunction, scheduled for August 8 & 9, has been held, or until such time as the Court, if it issues a preliminary injunction against the law, dissolves that injunction.
However, the parties and the Court made it clear that the agreement does not apply to any individual or business that is not either a plaintiff in the current lawsuit or a member of the Free Speech Coalition.
Since the Coalition refuses to provide the government with a list of its members, the way the Justice Department will determine if some entity is eligible for inspection is by inquiring of a “Special Master” to be appointed by the Court, to whom FSC will give a copy of its membership list solely for the purpose of answering such inquiries. If a person or business appears on that list, the government will terminate any inspection attempt – but if the entity’s name is not on the list, the government is free to invoke all of its powers under the 2257 law and the regulations published late last month.
That membership list is to be furnished to the Special Master no later than June 29, and the list will include all persons and businesses that were members of the Free Speech Coalition as of 2 p.m. on Saturday, June 25. Attorneys for FSC agreed informally to the government’s demand that the Coalition not mount a special effort to seek new members between the time of the agreement and the June 25 deadline.
Kaplan made it clear, however, that if no preliminary injunction is issued, the government will expect adult companies to have complied with the 2257 regulations at least from the date that those regs were due to take effect: June 23, 2005. Further, if an injunction is issued and later rescinded, the government will take the position that 2257 records and all of the attendant regulations should have been kept and organized as per the version published in the Federal Register on May 24, 2005, and will prosecute anyone that an inspection reveals failed to adhere to those regs.
And finally, if an injunction remains in place throughout the course of the litigation and trial of the matter, if at any point before or after the trial that injunction is lifted, the government will be free to begin inspections and prosecutions immediately if adult companies’ records, indexing, et cetera do not meet the criteria set forth in the current version of the regulations.
In other words, adult companies would be well advised to keep the records, index them according to the existing regulations, and to follow all other requirements of the new regulations.
Unsettled at this juncture are the myriad questions that form the basis of FSC’s lawsuit, including whether foreign performers can legally appear in American adult productions; whether “secondary producer” is a legitimate classification under the law; whether the government can force part-time small businesspeople to be available for inspections at least 20 hours per week; whether the law will even do what the government claims it will do – the list is nearly endless. Some or all of these issues may be worked out by the time of the preliminary injunction hearing, or at the hearing itself; and in any case, plaintiffs in the lawsuit, including FSC members as of 2 p.m. on June 25, will not immediately be held to the government’s interpretation of the regulations.
FSC memberships are currently being accepted by several methods. Potential members can join by filling out the forms on FSC’s Website, www.freespeechcoalition.com; or by e-mailing their intention to FSC at either [email protected] or [email protected]. They can also phone in their membership to either 866-372-9373 (toll free) or 818-348-9373, or they can fax their request to 818-701-6630 or 818-886-5914.
