The Free Speech Coalition (FSC) claimed victory when U.S. District Court judge Walker D. Miller issued a preliminary injunction against certain portions of the new regulations under 18 U.S.C. §2257, the recordkeeping and labeling law. Injuncted were the "secondary producer" concept as applied to both video production and website creation, and certain exceptionally onerous recordkeeping requirements for live webcam sites.
But although it was definitely a victory, the injunction gave FSC far less than it had asked for – so the adult industry trade organization is appealing the order.
"We filed a notice of appeal," said Jennifer Kinsley, whose partner H. Louis Sirkin is lead counsel in the lawsuit, "but the only component we're appealing is the judge's decision on the facial constitutionality of the statute, so the remainder of the decision is intact."
"We want to get the First Amendment issue squarely before the Tenth Circuit," added Michael Gross, who argued the "secondary producer" aspect of FSC's motion before Judge Miller last August 2. "The court gave us some favorable rulings on, of course, the secondary producer issue and the chatroom issue and other issues, but at this point, we're just looking at appealing the First Amendment issues with regard to content-based regulation and the level of scrutiny. The judge accepted [the rulings of] two previous courts, the Sixth Circuit and the D.C. Circuit, that it's properly intermediate level scrutiny, but we still firmly believe that it should be evaluated as content-based strict scrutiny. I think some judge in one case said, 'Only in the world of lawyers and judges would this law be called content-neutral, but that's what the Supreme Court calls it, so I guess I have to say it is too.'"
Gross filed the notice of appeal with the Tenth U.S. Circuit Court of Appeals in Denver on Jan. 27, at the same time e-mailing a copy to U.S. Attorney Sam Kaplan, who represents the defendant, Attorney General Alberto Gonzales.
"Nothing in terms of the legal arguments has been filed yet," Kinsley noted. "Once we get a briefing schedule from the court, then we'll be filing our brief which will explain our grounds for appeal. We have not received any notice that the government is cross-appealing, and we don't anticipate them doing that."
Kinsley was somewhat reticent about giving too much detail as to FSC's plans for the appeal and the possible subsequent court battle because, "We know that the government is watching AVN's website. They're watching YNOT. They read everything on there, so we want to try to keep it small so the government won't cross-appeal, but at the same time, there's nothing wrong with people knowing that it happened."
However, she assessed, the government is unlikely to challenge the points won by Free Speech in the injunction, because "I think the things that were enjoined are things they can live with. They would have had a Sundance problem had they tried to conduct an inspection of a secondary producer anyway, so I think they are willing to live with it, thinking 'This will just be for a limited period of time, and then we'll have a trial we can win.'"
The government would be walking on very thin ice if it tried to appeal what are essentially minor issues compared to FSC's attempts to get the entire recordkeeping and labeling law overturned. The Tenth Circuit Court of Appeals had already stricken the "secondary producer" concept from the first set of 2257 regulations in the Sundance Associates v. Reno case, so the likelihood of them reinstating that definition is virtually nil, leaving only the archiving of live webcam shows as the only issue they could win.
"It's good that we have the First Amendment issue squarely before the Tenth Circuit," Gross said, "because there are obviously a lot of technical issues involved with regard to both the business and the specific regulations about each various component of the Internet and how it's applied to the regulations, and it gets quite technical. Sometimes you get lost in all the technical details, but the overarching First Amendment issue is really the issue that should have been raised for years.
"I know Reed [Lee, one of the FSC board members overseeing the case] feels really strongly about the assumption that it criminalizes protected expression," Gross continued, "and that's the point I've always wanted to make, too, and we've kind of gotten sidetracked with secondary producers and Sundance and all that old stuff. But as things stand now, if you don't have a record, you can go to jail for protected expression, even if the participants are 80 years old; you have no recourse. That flips the First Amendment on its side and puts the burden on you. It's a strong First Amendment issue. And the Free Speech Coalition v. Ashcroft case [involving sections of the Child Pornography Prevention Act] really brought that principle home. Of course, the makeup of the court hasn't changed, but Justice Kennedy's still there and he wrote that opinion, which is a great opinion."
But although, for instance, U.S. District Court judge Gary Lancaster has stayed (paused) the proceedings in the Extreme Associates case while Sirkin petitions the U.S. Supreme Court to overturn the Third Circuit ruling reinstating all charges against those defendants, a judge is not required to do so, and the plaintiffs in this case may wind up fighting two battles at once.
"What is a little bit unclear is what impact this [appeal] will have on the future of the litigation in front of Judge Miller," Kinsley advised. "It's not automatic that the proceedings will stop while we have this appeal, so it might be possible, since this is a preliminary injunction order, for the judge to go forward and actually have a trial on the case while we're still waiting for our appeal to be resolved. We obviously hope that won't happen, but it could be spinning everybody's wheels."
"It has not been taken up yet because it's not the procedural time to do that," she continued, "but yes, at some point, we will say to the judge, 'Hey, let's not have a trial on this yet, because if we win our appeal, all of 2257 is out, period, so why would we want to have a trial on, you know, the 20-hour requirement?' Because that could totally be gone if we win the appeal."
In any case, it's unlikely that the appeal will move quickly.
"It's still in the very early stages," Kinsley explained. "We don't have any briefing schedule, and normally, you're going to get at least a couple of months to put your brief together once you get a schedule, so we're talking about several months before anything significant will happen."
Also moving toward the front burner is the government's motion for summary judgment in the case, arguing that the facts on which both sides agree are so clear that the judge could render a verdict on just the pleadings – a claim that the plaintiffs strongly dispute.
"We're in the process of getting an extension to have our answer be due on February 20, and the government has agreed to that," Kinsley said. "They don't oppose us having a little more time. Mike [Gross], Roger Wilcox and I are working on that together."
That's hardly the only thing the Sirkin/Kinsley team is busy with. That petition for certiorari to the Supreme Court in the Extreme Associates case is due to be filed by April 10, and the industry and its attorneys will be looking hard at what reaction the petition may evoke from the high court's newest justices.
