Settlement Reached on new 2257 Regs!!

50..........

OK people this IS the USA

you cannot selectively enforce a law and Piconelli and others know it. Any compromise reached with the DOJ would have to be Universally applied UNLESS its just an agreement not to investigate members until the constitutionality of the law has been settled.

Technically it is possible that this could only apply to FSC members but realistically it would be unlikely that the DOJ would start enforcing it elsewhere because its unlikely that it would be enforceable if challenged.

You're with the DOJ aren't you? lol

EGGACTLY!

Mike I disagree. The FSC could fashion a settlement where the DOJ agrees to not prosecute FSC members and I believe such a settlement would hold up under scrutiny of any challenge to the settlement's legitimacy. The Feds settle with people all the time and I have personal experience with seeing a group of people prosecuted and then selectively a segment of that group is given amnesty or a lesser sentence in exchange for some action favorable to the prosecution's side. Here would be no different.

That is an utterly different scenario because a) an entire group is prosecuted and b) those within the group who are offered deals have to give something in return. If the piece in XBiz is to believed, there will be one law for FSC members and another for everyone else. That is patently ludicrous.

An implication of this piece of news is that in order to strike this deal, the lawyers have gone back to their clients for approval. I'm curious how many "members" know who exactly is instructing FSC's lawyers and whether they know what instructions have been given, whether in respect of general strategy or as regards what is up for compromise. And in circumstances such as those suggested by the piece in XBiz, who has the authority to determine what will be acceptable to FSC members?

Could you give an example of that? Any time one group of people received seperate treatment from others that was not based upon their race, creed, sex, religious beliefs?

"Hi, I'm an FSC member, so I can speed as fast as I want down this highway while you can't because you AREN'T an fsc member!"

Jayeff,
If the FSC were to do a deal with the DOJ where the DOJ agreed to not prosecute FSC members in return for dropping of their suit and/or the TRO, the DOJ would be getting a benefit. The fact that they have given amnesty to FSC members does not mean that the created two laws, it just means that the are under a binding agreement to not prosecute the FSC.

Deal making like this is perfectly legal. The State or the Feds are always able to cut deals that further the Govt interests. There has always been a pretty loose standard as to what constitutes furthering the Govt interests. In Florida, trial court Judges can refuse to accept any such settlements if they find them unacceptable, although in reality this doesnt happen much. Most judges feel if they can get the prosecutor on record saying that they want to do this deal then who are they to get in the way and certainly if this deal blows up, most of the blame can be placed on negligence of the prosecutors office and not them. If such deals were not permissible and could be challenged successfully, the entire negotiation and plea system of our Courts would be in peril. Think alone of the amount of cases this would put in a position where the only resolution would be jury trial.

Actually that deal would NOT be legal at all, it violates the principle of equal protection, what you are saying is that FSC members could break the law but others could not. Such deals do not hold up under legal scrutiny nor would the DOJ make such a deal, because then anyone wanting to make child porn and skirt the 2257 would need only to join the FSC. Suggesting such an agreement is preposterous.

Plea deals are VERY different and no plea deal allows someone to break the law, they may essentially forgive a one time transgression or such but you cant make a deal allowing a drug dealer to keep dealing because he became a pharmacist.

this is what i don't get.. especially for $50.. if you can't afford that.. it shouldn't matter whatever happens because you aren't making enough out of the industry for it to matter if you have to stop.... *shrugs*

Good point, and scary.

This is as I understand it, also. Basically, they set a presedent when they grant an injunction for anyone. They CAN prosecute if they want to, but it puts a hole in their case, so they usually don't.

Still, no one wants to be the test case for that, either.

Mike,

Let me give you an easy settlement scenario

Feds and FSC agree to drop TRO but allow suit to proceed. Feds in return offer to not prosecute FSC members for violations of the new 2257 laws (not the old ones mind you just the new regs) while suit is pending. Feds will likely include language in their settlement that specifically grants the feds the right to investigate and prosecute FSC members for crimes not related to the specific application of 2257 (like in your example child pornography which is ALWAYS been illegal and is not part of any challenge by the FSC).

Settlements have always been an integral part of the Justice System in the USA and Prosecutors are given tremendous leeway in their dealmaking.

you just gave a scenario that is exactly what I said the feds can agree NOT to prosecute FSC members until the suit has been settled. But that gives non FSC members the legal standing to either have their case dismissed or postponed until such time as the courts have settled the FSC suit so you can bet if that is the case the feds arent going to bother going after anyone untill such time as FSC vs Gonzales has been settled.

and from a legal standpoint this is exactly the same as havng the TRO in effect so what did the DOJ gain?

Why do you believe this gives the non FSC folks standing to argue that they should be afforded the same guarantee of non prosecution while the suit is pending?

I am not thinking of course of those other non FSC members that independently file suit and also seek a TRO. In that case, the Feds may also offer the same deal if they feel its worth it to do, but in no case does it mean that because the FSC got a good deal, now everyone else gets it too. Everyone else provided nothing of benefit to the Govt.

If the TRO is granted technically the Feds are unable to prosecute FSC members but the real world application of this is that the Feds would at that point stop prosecutions until the suit is resolved. The reason for this is that the standard for a TRO is pretty high and if another Court has granted a TRO its pretty likely that the next Court will look and see a TRO has already been granted for a previous plaintiff and just rubberstamp the new TRO. The Feds know this and this is why they would rather give a deal now to the FSC and leave open the prospect that they could get access to all the other non FSC members through 2257 inspections than lose the TRO and essentially have to win the suit to enable inspections.

Injunctions are orders made by courts.

You cannot be subject to an order made by a court without being a party to the lawsuit in which the order was made.

exactly right but...

If you are granted an injunction because the law is possibly unconstitutional the same party isnt going to come after me because it is a waste of time, I go straight to a Judge and file for protection/postponement and it gets granted. Its a waste of time...Even the feds know that

what amuses me here is that this is even being discussed we dont even know that there IS a deal, much less any terms. Suffice it to say any protection from prosecution offered to FSC members would essentially apply to everyone.
IF the FSC actually cut a deal I want to see what it is before I pass judgement but it is unlikely that the FSC got the law rewritten or anything like that and the law as it is would have extreme difficulty passing constitutional muster.

There may be some very unintended consequences that come out of this as well. This could squarely negate the Community Standards argument and place the definition of obscenity on the Federal Government, In support of this argument the courts can find that particularly internet porn falls under Interstate Commerce which is unarguably the domain of the Federal Government.

The privacy issues, the right not to incriminate yourself, states rights, and unreasonable search and seizure are all at issue here, this is clearly a poorly written peice of legislation and it is likely that a judge will see it for what it is but until such time as all this is settled its going to be someones onus to fight for the rest of us. This is where I currently applaud the efforts of the FSC, let us all hope they don't cave.

One of the lawyers for the FSC made a statement here on GFY regarding this. Here is part of the statement:

"As a last matter, no one from the FSC has said or meant to suggest that someone should become a member of the FSC in order to be protected under an injunction that does not even exist. While it is a fact that under the Federal Rules of Civil Procedure only parties to litigation are covered by an injunction, it has also been amply explained by now that while technical limitations apply, the practical result of some injunctions is that no one is prosecuted while the injunction is in effect, as has happened with COPA."

If the FSC wins then it benefits all.. not just their members

If you believe in the FSC support them... but don't give in to this hysteria

It has been interesting conjecturing all evening about what might happen and all the different scenarios.

And in the "I'm a member of FSC, so I'm exempt for X amount of time from prosecution" settlement sceanrio..it has been suggested that non-members can and probably will be prosecuted.

However, in the real world, if the ABC company is brought to trial for violation of the new 2257 regs, and is not a member of the FSC, you can bet the farm that the first thing the attorney for the ABC company will do in court is say "Your Honor, I move to dismiss this case on the grounds that there is inherent discrimination towards my client in this suit. The ABC Company is doing absolutely nothing different than the XYZ Company is doing, in fact, they are both doing the EXACT SAME THING! However, the XYZ Company will never be prosecuted for what my client is brought to court for."

The Judge would probably ask the prosecution something along the lines of "Is that right?"..and the prosecution would have to say "Yes".

The Judge thinks: "The only thing the defendant has done wrong was NOT to join the FSC."

What do you think the Judge would do then?