The first sentence of the U.S. Department of Justice's Motion to Dismiss and/or Motion for Summary Judgment in the case of Free Speech Coalition (FSC) v. Gonzales reads, "Plaintiffs’ 32-count challenge to 18 U.S.C. §2257 and its implementing regulations establishes only that the number of claims in a complaint does not reflect their merit." Not the most auspicious or substantive beginning to a motion which the government undoubtedly hopes will kill the adult industry as we know it – and what follows tracks both the government's anger with the industry and its lack of firm ground upon which to challenge FSC's arguments.
Emulating Jimmy Breslin's "Gang That Couldn't Shoot Straight," the Justice Department first attempted to file a 75-page version of the motion, knowing full well – because an issue was made of it at the hearing in front of Judge Walker D. Miller in August – that the page limit for motions in Judge Miller's court is 30 pages. Nonetheless, the current motion runs 39 pages, with the government apparently taking the position that the first nine pages, which consist entirely of case citations, cited references to statutes, regulations and other public documents and a table of contents, aren't covered by the page limit.
Attorneys for FSC must file an answering motion by Jan. 22 unless an extension is granted, and FSC Director of Public Relations Tom Hymes said he believes that a request for extension will be filed.
"Plaintiffs' claims include a First Amendment challenge that two courts of appeals have already rejected, and over ten unavailing constitutional vagueness claims that feign mystification over the meaning of such terms as 'homepage,'" the motion's author seethes. "Further, plaintiffs erroneously assert that a right to 'privacy' in basic driver’s license information of individuals who have sex for money on camera trumps basic protections designed to protect children from sexual exploitation. Plaintiffs also add Fourth and Fifth Amendment claims that ignore the limited nature of the inspections that the statute authorizes, as well as their basic regulatory purpose. Not content to challenge the regulations as they are, plaintiffs also assail provisions that do not exist and erroneously challenge other regulations as ultra vires. The Court also lacks jurisdiction to consider many of the claims that they raise, including their claims related to privacy and the Fifth Amendment."
Just a few problems with that summary:
1) While both the Sixth and the D.C. Circuits have indeed ruled that an earlier version of the 2257 regulations survived an intermediate scrutiny challenge, the Tenth Circuit, in which this lawsuit is being argued, has already ruled that the "secondary producer" definition in both the old and the current versions of the regulations is unconstitutional. Further, FSC has made several arguments that the regulations and the law itself should be subjected to strict scrutiny, a much higher legal standard, especially since it's clear that the law does not accomplish what the government claims; that is, prevent underage performers from appearing in sexually explicit content.
2) While the government claims that the terms it uses, which are under challenge in the lawsuit, are not unconstitutionally vague, it has refused to provide clearer definitions of several terms, not the least of which is "producer," the term used in the Recordkeeping and Labeling law passed by Congress, which magically separated into "primary producer" and "secondary producer" in both the old and new sets of regulations. Moreover, the attempt by Attorney General Gonzales to severely narrow the variety of acceptable "identification documents" under 18 U.S.C. §2257, to the point where foreign performers would be barred from appearing in adult videos or on adult websites, is another clear example of the Justice Department's overreach.
"Plaintiffs ignore the plain language of the challenged provisions, the official commentary, and defendants’ response to their earlier requests for clarification of certain provisions," the motion claims. However, while the government argued in court that the commentary accompanying the new 2257 regulations had no legal weight, in a letter to Free Speech's attorneys, the government claimed that those same commentaries answered several of the questions and issues raised by First Amendment attorneys confused by the new regulations.
"Further," the motion continues, "as plaintiffs' own amended complaint demonstrates, the challenged provisions would be readily susceptible to a narrowing construction to resolve any posited ambiguity." The problem with that approach is that absent a facial challenge, which the FSC lawsuit partly is, the only way a "narrowing construction" would "resolve any posited ambiguity" is after someone is busted, has gone to trial, has been convicted, and the case is appealed, possibly as high as the U.S. Supreme Court – a process costing many millions of dollars and likely at least five years of legal uncertainty.
Similarly, the government shoots itself in the foot in attempting to answer FSC's complaint that the phrase "assisting another person to engage in" sexually explicit conduct invokes a "limitless" definition of "assisting."
"The word 'assist' thus only comes into play at all for those performers who do not themselves engage in sexually explicit activities but who assist others to do so," the government's motion claims – but observe the example that immediately follows: "The word would apply, for example, to a performer who used a sexual aid on another performer"! So ... performers who dildo other performers are not "themselves engaged in sexually explicit activities"? A lot of adult industry members will be plenty surprised to hear that!
In dealing with FSC's challenge to the vagueness of the phrase "copy of the depiction," the government specifically ignores some of the incredible burdens that keeping such copies would place on some adult producers.
"The word 'copy' when used 'in reference to a sexually explicit depiction means the sexually explicit image itself (e.g., a film, an image posted on a web page, an image taken by a webcam, a photo in a magazine, etc.),'" the motion says. "The definition permits 'a photo in a magazine' to be used, and thus makes clear that the original photographic proofs do not need to be in the records. DOJ included the definition only to make clear in response to a comment that the term encompasses copies of all sexually explicit images, including images from magazines and films.
But keeping "an image taken by a webcam" for a person who sends out a live 24-hour feed from their bedroom would quickly require terabytes of storage space, and the accompanying staggering cost.
3) Since 2257 fails to "protect children from sexual exploitation" due to the fact that as long as a performer submits authentic-looking identification documents proving that they're over 18, producers are not required to question such documents, even if the documents are in fact counterfeit. Therefore, requiring that such documents be produced, copied and maintained does little to prevent underage performers from appearing in sexually explicit material. Both Traci Lords' and Alexandria Quinn's identification documents were reportedly issued by government agencies, and the two other underage performers may have had similarly authentic-looking papers – yet all would have been allowed to perform sex in videos until their fraud was eventually discovered – if it ever was! And once such a performance has taken place, time cannot be run backward to unshoot the movie or photographs. The best that can be done is to take the material off the market – a far inferior remedy compared to what the government claims can be accomplished with the 2257 law.
4) Since the 2257 regulations don't accomplish what the government claims they do, the privacy right that performers can (and do) assert in keeping their real names, which appear on their identification documents, away from public scrutiny may easily outweigh the government's interests in requiring that 2257 records be kept – but that will be for Judge Miller to decide at trial.
5) The government claims that FSC's contention that although Congress recently amended the law to allow 2257 records to be used in child porn and obscenity prosecutions, thereby infringing on everyone's Fifth Amendment right not to be a witness against him/herself, FSC's claim is not ripe because the government has not yet attempted to use 2257 records in that manner. In fact, that is the reason for a facial challenge to a law: To head off an unconstitutional law before a victim suffers years of litigation and hundreds of thousands of dollars in legal expenses.
Besides, the government asserts, prosecutors don't want to use 2257 records to help convict anyone of obscenity or child porn.
"The purpose of inspections is not to generate evidence to prosecute obscenity and child pornography but rather to ensure that producers perform a basic preventative act – i.e., verifying the ages of performers in sexually explicit depictions."
But no adult industry producer wants to use an underage performer, if for no other reason than that such use is already illegal under the child pornography laws, and pragmatically, such use would eventually require the recall of thousands if not millions of dollars worth of product
Although virtually none of the points in the government's motion to dismiss are well taken, since several misstate FSC's position, several more misstate the government's own positions previously taken, several involve unique interpretations of settled law and several rely on the "trustworthiness" of the Justice Department to do or not do something that in fact it would be safer to have a court rule on, FSC's attorneys will answer each and every one of the points listed. Look for an analysis of that response on AVN.com after it is filed.
