Free Speech X-Press
Delivering Weekly Censorship Updates to the Adult Industry
Vol. VII, No. 28, May 27, 2005 -- A Member Service of the Free Speech Coalition
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Free Speech X-press is researched and edited by Kat Sunlove and Layne Winklebleck.
Copyright 2005 Free Speech Coalition. Permission to reprint granted to FSC members; please give credit.
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VISIT OUR WEBSITE FOR FSC MEMBERSHIP INFORMATION
http://www.freespeechcoalition.com
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FSC MEMBERSHIP MEETING THURSDAY, MAY 26
FSC?s new federal lobbyist, Aubrey King, and new Communications Director, Tom Hymes, will make presentations at the membership meeting this week. Members of the FSC Government & Legal Committee will be on hand to answer questions about the pending 2257 litigation.
The meeting will be held at the Warner Center Marriott in Woodland Hills, at 5:30 PM, this Thursday. Please RSVP with Neva Chevalier at (818) 348-9373 or by email at
[email protected]
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2257 REGULATIONS PUBLISHED
WASHINGTON, DC --The revised provisions of 18 U.S.C. § 2257, the Federal Record-keeping and Labeling law, have been published in the Federal Register (see URL below) and will go into effect soon. As noted in the X-Press report last week, responding to the threat of 2257 enforcement is a top priority of Free Speech Coalition. Now that the regulations have been published, FSC will go into federal district court to seek an injunction on behalf of its members. FSC plans two lawsuits, led by premiere First Amendment attorneys, one to be filed on the West Coast by H. Louis Sirkin, and the other by Paul Cambria on the East Coast.
Of course, FSC cannot guarantee that injunctive relief will be granted, or, if it is, what components of the law and regulations will be covered. Adult industry members who are affected by this law should also bear in mind that under the Federal Rules of Civil Procedure, only the parties to litigation are covered by an injunction. Therefore only the Free Speech Coalition and its members will be covered by any injunction granted as a result of FSC?s planned litigation. FSC recommends that adult industry companies comply with the new regulations, insofar as possible, and seek legal advice from attorneys knowledgeable about the new regulations.
The DOJ has amended some requirements from its original proposal, but in many areas the final version is unbending, making compliance extremely difficult, if not impossible. To cite just one example, webmasters face daunting problems due to the way the government views ?secondary producers.? As First Amendment attorney Lawrence Walters points out in an AVN interview with Kathee Brewer, many webmasters, following guidelines set out by the Tenth Circuit Court in the 1998 Sundance Associates Inc. v. Reno decision, believed they were not subject to records inspections. They believed that they could meet the 2257 requirements laws by referring inspectors to the records custodians for the companies and individuals from whom they purchased, leased, or borrowed their content.
Not so, says the DOJ, which cites a different case, American Library Association v. Reno [1995], and rejects Sundance v. Reno.
What this means under the revised 2257 law, is that so-called ?secondary producers,? such as many webmasters, will be required to have 2257 records for all sexually explicit depictions dating back to 1995. For many, this will create a huge problem, because secondary producers will have to locate records from primary producers who may have moved, shut down, or otherwise disappeared.
This may seem drastically unfair, since many ?secondary producers? were, in good faith, relying on a court decision for guidance.
Tough, says the DOJ: ?The Department is not responsible if secondary producers chose to rely on the Tenth Circuit?s holding in Sundance and not to maintain records while ignoring the D.C. Circuit?s holding in American Library Association v. Reno. A prudent secondary producer would have continued to secure copies of the records from primary producers after July 3, 1995.?
From the revised 18 U.S.C. § 2257 and materials, 5/24/05
http://a257.g.akamaitech.net/7/257/2...5/05-10107.htm
And from Kathee Brewer, AVN.com, 5/24/05
http://www.avn.com/index.php?Primary...tent_ID=227704
And from a Free Speech Coalition press release, 5/25/05
http://www.freespeechcoalition.com/
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APPEALS COURT DENIES FEES AWARD TO FSC
SAN FRANCISO, CA -- The U.S. Ninth Circuit Court of Appeals has overturned a lower court decision which would have rewarded attorney fees incurred by Free Speech Coalition in its challenge of the Child Pornography Prevention Act (CPPA). FSC won the case, in a 2002 landmark Supreme Court decision that struck down portions of the act. A district court judge awarded attorney fees to FSC but the Department of Justice appealed the judgment.
Writing for the Ninth Circuit, Judge Michael Daly Hawkins said that the government was entitled to a ?highly deferential standard? in its decision to defend the CPPA. Hawkins said the concept of ?virtual child pornography? was a new concept in the law for which the constitutionality had yet to be determined. The district court award was based on ?hindsight,? said Hawkins.
FSC had hoped to get back the $200,000 the organization spent fighting the CPPA, and it would have been a case of just dues if it had gone that way. Taking on the CPPA was a bold move. The law criminalized adult actresses playing the parts of underage characters, a flagrantly unconstitutional notion, and yet not a single major anti-censorship group would sign on to a challenge, not the ACLU, not People For the American Way, not Hollywood -ha nobody -- not with the words ?child pornography? in the title of the law.
As First Amendment Attorney Clyde DeWitt notes in Mark Kernes? AVN piece on the Ninth Circuit action, it is difficult to recover attorney fees against the federal government. And so it appears; however -- money matters aside -- FSC did a great service to freedom of expression and the Constitution in its Ashcroft vs. Free Speech Coalition victory. Nothing in the denial of attorney fees by the Ninth Circuit diminishes that.
From Mark Kernes, Adult Video News, 5/23/05
http://www.avn.com/index.php?Primary...tent_ID=227644
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COMPROMISE REACHED IN SENATE BATTLE
WASHINGTON, DC -- The so-called ?nuclear option? -- also known, on the Republican side of the aisle in Congress, as the ?Constitutional option? -- has been defused, at least for now.
The issue, which has been looming over Congress for months, stems from a threat by the Republican majority to alter Senate procedures so that Democrats could no longer use the most effective -- almost the only -- parliamentary weapon in their arsenal, the filibuster, to block votes on extremely conservative nominees to the federal bench and the Supreme Court. The phrase ?nuclear option,? refers to the drastic nature of the threatened rule change as well as the possible response by Democrats in closing down or slowing Senate routines in retaliation.
For a time it appeared there was no possibility of compromise, in large part because activist groups representing the liberal wing of the Democratic Party and the conservative base of the Republican Party have both vehemently opposed compromise. The attitudes on each side are polarized and they have brought political heat to bear at a level not seen since the presidential campaign.
The stakes could hardly be higher for the adult entertainment industry. Supreme Court votes on First Amendment issues often turn on a single vote. If the social conservatives who now control two of the three branches of government also gain control of the judiciary, it will be a dark day for freedom of expression in this country.
The compromise was brokered by a group of seven Democrats and seven Republicans. This group has the power to break the deadlock and avoid the nuclear option because they collectively represent the number of votes needed to swing the balance either way. The compromise is that some of President Bush?s judicial picks will get ?up or down? votes for confirmation by the entire Senate, while Democrats will reserve the right of filibuster ?under extraordinary circumstances.?
Of course, there is nothing to say the issue can?t come up again. The real test will be if President Bush asks the Senate to confirm a controversial nominee for the Supreme Court or for Chief Justice.
From Jim Abrams, Associated Press
http://www.sacbee.com/24hour/politic...10713334c.html
And from Kathy Kiely, USA TODAY, 5/23/05
http://news.yahoo.com/s/usatoday/200...ftagreenodeals
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