Free Speech Coalition is preparing a legal challenge to Title 18 U.S.C. §2257 and supporting regulations, at the moment Attorney General John Ashcroft decides to hand down the planned final 2257 regulations.
Attorney Jeffrey Douglas, a member of the FSC litigation steering committee who is helping to prepare the litigation, told AVNOnline.com they will at least wait until they see what the new regulations actually turn out to say before filing any litigation.
“We know that if they’re identical or basically similar to what we saw as proposed, my guess would be within 10 days to two weeks we would be ready to file,” Douglas said. “But there are so many variables as to what the regs will ultimately say, we will have to take a look at them. My guess is that, no matter what they are, we’re going to be ready before the regs go final. If they say these are the regs that will take effect in 10 days, we’ll file in 10 days. One way or another, we’ll file as fast as possible before they would go into effect.”
Typically, Douglas said, there is a 30-day time lag between the announcement of a final set of such regulations and the date they actually take legal effect.
FSC is apparently banking on its success in getting the Child Online Protection Act struck down as unconstitutional to help it thwart the new 2257 regulations. FSC is apparently banking on its success in getting the Child Online Protection Act struck down as unconstitutional to help it thwart the new final 2257 regulations. The trade association has engaged several legal heavyweights to handle and counsel on the prospective legal fight: H. Louis Sirkin, who led the FSC COPA challenge; Paul Cambria, the influential First Amendment attorney; and three of the FSC’s litigation steering committee, Reed Lee, Greg Piccionelli, and Douglas.
“Judging by the proposed regulations, it will be very difficult for any Adult manufacturer, producer, content provider, or Web site operator to comply with the regulations,” FSC said in a letter that began circulating October 19 and made available to AVNOnline.com.
“Even if the proposed regulations are substantially modified in response to the public comments, the fundamental problems with… 2257 will still exist,” the letter continued. “That is, the law violates privacy rights, First Amendment protections, and creates an unnecessary significant economic burden on this industry of small businesses.”
FSC is also asking members and supporters to contribute to the battle, saying they’re looking for $5,000 donations to build a 2257 litigation fund. “Compared to the cost of defending a Federal criminal prosecution for violating… 2257, this is an excellent investment,” the letter said.
First violations including filing errors carry a felony conviction good for a maximum five year prison sentence, with two-year minimum/10-year maximum sentences for any subsequent such convictions.
Last month, Chicago-based attorney J.D. Obenberger filed a Freedom of Information Act request on behalf of AVN Online asking for a copy of Ashcroft’s June report to the House Judiciary Committee regarding 2257 inspection history. "My hunch," Obenberger said at the time, "is that [the federal government doesn't] want [the report] to be out because it's an embarrassing instance of nonperformance by the Justice Department, and they don't need that in an election year. But there may be stuff in that report pertinent to their strategy against the adult Internet. That's why we want it."
Ashcroft was under federal mandate to give Congress a 2257 inspections report 12 months after the Protect Act took effect; he presented it 14 months afterward, the report saying there had been no such inspections “as a practical matter” but Ashcroft telling Congress the inspections would come and calling for more “specific and clear” regulations on records and inspections process details.
In August, FSC’s Lee said the recordkeeping requirements being proposed as part of the new 2257 regulations are unclear and too burdensome, calling for at least letting records be kept in digital form because the volume of paperwork the new regulations require would overwhelm smaller companies trying to comply.
Lee also argued, perhaps more significantly, that requiring the name and physical addresses of record custodians be disclosed would equal a privacy threat that exposes producers to identity theft and even stalking.
Douglas said he could not predict exactly when Ashcroft would hand down the new, final version of the changing 2257 regulations.
“It could literally happen today. It may be that political motivations will encourage them to wait until after November 2,” he said. “But the comments that the FSC filed as well as others were very extensive. That the proposed regulations have so much that is fundamentally wrong with them that if they took the public comment seriously, it would make sense and it would take them awhile to respond.
“It would surprise me if they take the comments seriously,” Douglas continued. “But hope springs eternal. Maybe they’re taking our comments seriously. Maybe they’re going back to see if there’s a way they can redraft them that is both lawful and constitutional.”
