FSC Gets the Injunction in 2257 Case!!
 

Just in from Tom Hymes at FSC:


Judge Miller Has Issued a Ruling on Plaintiff?s Motion for a
Preliminary Injunction in Free Speech Coalition v. Gonzales

Denver ? United States District Court Judge Walker D. Miller issued a long-awaited ruling today on plaintiff?s motion for a preliminary injunction in Free Speech Coalition v. Gonzales, the trade association?s challenge to U.S.C. 18 §2257, the federal labeling and record keeping regulations. Our immediate reaction is that the ruling deals a substantial and welcome blow to the government?s regulatory scheme.

The 29-page ruling was issued this afternoon in Denver, and is currently being assessed by the Free Speech Coalition legal team. An analysis of the ruling will be made available as soon as possible, as will an official reaction by the Free Speech Coalition, but what can be stated without reservation, and about which we are clearly pleased, is that the ruling enjoins the secondary producer provision of the regulations, as stated below,

??Plaintiffs [FSC et al] have shown a substantial likelihood of success of establishing that the statute and regulations may not be enforced as to secondary producers who are not involved in any activity that involves ?hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted. U.S.C. 18 §2257 (h) (3)?

The ruling is available at www.freespeechcoalition.com.

The Free Speech Coalition will make every effort to respond to specific inquiries about this ruling, and asks that all interested parties take the opportunity to attend the FSC membership meeting in Las Vegas on Thursday, January 5, 2006, in Room 403 of the Sands Expo, Las Vegas, Nevada, adjacent to the Venetian Hotel and Casino. By then, FSC attorneys will have had time to analyze the ruling and will be in attendance to answer your questions.

Independent of any future FSC analysis, we caution all members and non-members who may be affected by this ruling to seek legal advice about how to respond to this ruling.

Free Speech Coalition is the trade organization of the adult entertainment industry. Its mission is to safeguard the industry from oppressive governmental regulation and to promote good business practices within the industry.

Halle-fucking-lujah!!!!

W
OOOOOOOOOHOOT!

OH man thats good to hear that they specifically addressed the secondary producer issue.

That is GREAT NEWS!

:drinkup :drinkup :drinkup

This is not finished by a long shot, but it is a great start.

Fuckin' A :thumbsup

:: does the worm :: What great news for once!

:1orglaugh :1orglaugh

Geee, that just started another 1000 TGPs..... :thumbsup

The Lord is on our side. Take that you Christian radicals.

Justice, and reason my friend.

Fuck god he had nothing to do with it cept his alienated psycho followers that brought it upon us.

At this moment of jubilation, thanks belong to the adult internet community for all your support. You have made a difference in how effective the FSC can be in fighting for the rights of adult entertainment companies.

This is your victory.

This fight is far from over; but, today, I say...... job well done. :thumbsup

Quick read of the judges comments:

Looks like it will be a partial injunction:
-secondary producers are off the hook for keeping records and looks like they will be completely left out of the inspection process if ever there is any enforcement.
-chatrooms are off the hook for storing all material and are likely to be included in the injunction
-primary producers do not have to track URLs outside of their control
-with no injunction secondary producers would suffer irreparable harm

However,
-performer IDs are still required for inspection and possibly distribution with personal information blocked out (for primary producers)


:glug

Hopefully this will lead to a permanent injunction.

Good work FSC...Keep it up!!! :thumbsup

ADG Webmaster (FSC Member)

:-))
 

The following link to Mark Kernes' initial report and his down-to-earth and understandable comments on the AVN site are worth our time to also read, I think!

http://www.avn.com/index.php?Primary...tent_ID=252970

Whew!

Dave Cummings

:: Watches Sherm do the funky worm and is inspired to do The Robot ::

From what I have read if you produce content for your own sites. Your still pretty screwed. :(

Could you be a little more vague?

What did you read that left you with this opinion?

I read this somewhere else it speaks about better then I could ever and I quote:
trying to put a happy spin on today's decision, reporters from AVN reported that Miller decided to adhere to Sundance decision FULLY NOTING that Sundance is being SPECIFICALY and DELIBVERATELY legistlated against in both the house of Congress and the Senate.

"None of Defendant?s arguments change the reality that Sundance is binding upon me," Judge Miller's opinion continues. "The Tenth Circuit specifically held that §2257(h) is unambiguous and that plain language of the statute excludes persons 'who basically have had no contact with the performers.' The amendment does not alter the relevant language, or somehow render the provision ambiguous. Accordingly, even were I to agree that the statute is ambiguous, I am bound by principles of stare decisis to hold that the statue is unambiguous. Only the Tenth Circuit or the Supreme Court can change established Tenth Circuit precedent."

As we all know here, the idea of secondary producers at this point is BASICALLY MOOT as BOTH Rep. Pence's bill (HS 3726) and Sen Orrin Hatch's (S. 2140) child pornography enhancement bills both put that matter to rest as soon as they are voted into law next year when the Congress and Senate re-assemble.

The MAJOR portion of the 2257 law that would have lead to its defeat was SOUNDLY AND DIRECTLY confirmed AND UPHELD by Miller in his decision today -- the decision SUPPORTING the fact that 2257 law is basically right in forcing the producers to reveal their privacy PUBLICALLY and OPENLY for ALL who ask for it under the illusion of protecting children.

Many producers will look at the matter and decide that the cost of personal identity and their private life are NOT worth the risk that religious fantatics and repression promoters like Rep Pence and AFA who will pick and protest and drive people

Miller confirmed that people in the adult film business SHOULD NOT have the right to privacy on their home life by his statement

"Plaintiffs argue that §2257 and the regulations unlawfully infringe upon rights protected under the First Amendment," the judge writes. "They first claim that the substantial recordkeeping obligations make compliance impossible, and thus operate as a 'prior restraint' by inducing self-censorship chilling protected speech. However, it is clear that the statute and regulation do not constitute a 'prior restraint' as traditionally described by the Supreme Court... Plaintiffs place great reliance on Ashcroft v. Free Speech Coalition, where the Court held that 'government may not suppress lawful speech as the means to suppress unlawful speech.' However, Ashcroft dealt with an express ban on computer-created, or 'virtual' images of child pornography, not regulations like those in this case, which although they may burden Plaintiffs? expression, do not simply illegalize it."

Judge Miller rejected the argument that 2257 unconstitutionally shifts the burden of proof that sexually explicit speech is constitutionally protected from the government to the producer by noting that the law and regulations don't "ban" the speech ? but when producers can no longer afford to make content because of the extensive expenses associated with 2257 compliance -- TOUGH that is the price of buiness in a NOW regulated industry.

Miller ALSO rejected the idea that 2257 fails to prevent minors from performing in sexually explicit depictions, ignoring the fact that the four minors who have appeared in such depictions over the past 20 years reportedly all had IDs that would have passed muster under the 2257 regulations.

Miller MOST DIRECTLY supported 2257 as law in striking down the FSC's claim that providing such identification records violates performers' rights of privacy, he fails to fully consider the privacy rights of "producers who work out of their homes by mandating disclosure of the actual place of business on a label" ? an insurmountable problem, for instance, for women with bedroom webcams.

MIller bases his ruling on the fact that plaintiffs have only identified one instance of identity theft traceable to 2257 records, and Nina Hartley's "vague assertion ... that she is aware 'of a number of instances in the past two decades where adult performers have been stalked by fans.'"

"This is insufficient to establish a reasonable probability of harm resulting from the regulations," the judge writes. Apparently, several performers will have to die or have their identities stolen before this obvious violation of their privacy rights is clear to this court.

While superfically Miller has supported the FSC's position on secondary producers and web hosters, BOTH Of which will be changed AND REMOVED in the current changes being proposed by Pence's and Hatch's bills already partially approved into actual law, make no mistake ON THE CORE IDEAS that

1) 2257 is BASICALLY correct in assuming that producers ARE in some way guilty of promoting or directly violating children and MUST be forced to show that they are NOT exploiting children

2) correct in assuming that producers who choose to engage in this type of business MUST give up their right to privacy DESPITE the REAL threat of personal attacks by those who see it as their personal right to represess and force conformity onto the actresses and perfoprmers in this business if they are to operate in this business in the United States

BOTH of which would have OVERTURNED 2257 and forced a NEW law to be enacted, Miller choose to submit.

So make no mistake unless Pence and Hatch pull back their amendments to 2257 (which is HIGHLY unlikely at this point) Miller just very eliquoently and silently handed the Bible Thumpers the victory they wanted.

While everyone (with reasonable intelligence..and that does include the DOJ) expected an injunction, the REAL work is now about to begin. So while it's nice to have..we have to remember that this is only a TEMPORARY "timeout" until this case next goes to court.

And depending on that court's ruling, things can still be very difficult for the adult industry. While the injunction gives a reprieve for now to secondary producers, that still can change with a court ruling. (That..among other things given a reprieve for now)

Plus, the judge (this is why you need to READ the ruling!) had some suprisingly harsh things to say about the plaintiffs in this case (meaning the FSC aka "US") especially about record keeping not being that burdensome. A little unexpected from a judge THOUGHT to be more "liberal" minded.

Bump for a great news... :thumbsup

Bump for morning crew.

The FSC legal team is reviewing and analyzing the decision and, will have a summary ready ASAP.

Secondary producers ARE NOT off the hook. Only FSC members are protected from prosecution.

So all you industry folks that sat on the sidelines when the FSC needed funding to go to war for you, well sorry you don't get any benefit from this yet.

Holy shit, I can't believe it.

I think this last year served as a warning to a lot of people. And over all it was a good thing.

The idea that you can publish porn, soft or hard, without ascertaining the content is legal is beyond crazy and no defense in a court of law if you're up for publishing child porn or being sued by the model.

225 documents are by no means 1005 cover, but neither is my car seat belt 100% going to save my life. But I have all the documents for all the porn I publish ad always belt up.

I think what this does for secondary producers is free them from the over burdensome job of cross referencing and listing URLs.

Will some continue to buy content trusting another person to have the documents?

Will people continue to drive without seat belts. But because one idiot does it is no excuse for the other idiots.

I understand why some want to keep this section of the porn business as a cottage industry but that will not happen. What ever the 2257 law ends up like.

Video, Cable, Magazines are all run from offices and the judge must have thought "If you can't afford one that's your problem" This shoots down the privacy issue in a second.

As for him thinking that somewhere there are images of under age performers, well that's just logical while you have 1,000s of people buying and publishing content with little or no records.

4 performers were caught with 2257, without it what number would that have risen to?

2257 is not a guaranty it's 100% legal. But until someone comes up with something better it's ALL WE HAVE TO PROTECT OURSELVES FROM THE LESS THAN HONEST PERFORMER OR PRODUCER.

good deal for now. Have to see how the whole thing plays out

Actually read a book on the history of porn before 2257 they asked for id's ,the industry didnt want children in porn production's. Traci Lords who caused 2257 to happen had presented two forms of government id at her shoots showing her of age. Thats why no one was arrested for Traci Lords because she showed valid id. People have to stop accepting when they put us in with child pornographers.

I wonder how long it will be until there is a final rulling.

Actually, Rubin Gottesman, the owner of X-Citement Video spent a year in jail and was fined $100k because of it.

That is not technically or "realistically" true.
In class action suits like this, it does actually give a blanket injunction to all "pornographers". DOJ knows it can't start going out and selectively prosecuting NON FSC members. Why? Because even if they got a conviction, it would be appealed and over turned because you cannot have a selected member of our populace that has protection simply based on membership in an organization and the rest of the population not.

THats funny you telling a lawyer the law. lol

This is just the first battle in a long war. The entire thing will be mooted if Congress changes the law (In process now).

An injunction ONLY effects those who are parties to the injunction so only the plaintiff's are covered by victory and only on the issues enjoined.

If you are a secondary producer, not a plaintiff and not a member of the FSC you are technically not covered, however I doubt they will do anything until this is resolved. Caveat to all, I suggest you keep doing record keeping as if the law would be enforced because if the injunction is overturned in the appeals process, it will likely be retroactive to the date of the new regulations.

Regardless of member or not member of FSC, a federal judge ahs ruled that certain sections of the "new" 2257 could certainly be challenged, and would likely lead to a win. Therefore, there is no way in normal terms that the DoJ could even attempt to apply those rules, knowing full well that a federal judge has already ruled it likely that they will be thrown out.

I think that any court in the US would slap the DoJ as hard as legally possible if they tried it.

Alex

The fact is this ruling need only be followed in the 10th Circuit. If DOJ brings an action against a non protected party in another Circuit the result might not be the same. This court was in the 10th Circuit and they followed precident. DOJ may want to do just that because it will insure a Supreme Court hearing if two or more Circuits disagree on the law. In any event I doubt anyone wishes to spend the amount of money it cost the FSC to get this far.

The Justice Department was forced to drop all charges when it was revealed that the fake ID which Lords had used to dupe the pornographic film industry was a U.S. passport in the name of Traci Lords - the government had been duped, and any defendant would simply have been able to hide behind the government's error.

Rubin Gottesman served a year in prison, charges were not dropped. Read the case United States v. X-Citement Video.

Nice... so I am back to being legal again... for the time being.

i'm a secondary producer and we have every piece of paper and duplicates of ids and docs. even if it gets completely thrown out, i will still keep them. i don't trust the fuckers as far as i can throw em.

Any word on when this will be ready?

I spoke to Michelle, the FSC Executive Director, around 4:30 CST and she said the attorneys were working on it at that time. I imagine they are trying to be very accurate, cover most peoples questions, and give a prognostication of the future.

She said that as soon as they complete the summary, it would be posted to the FSC website.

Sorry I don't have a definite time. Just rest assured that the attorneys are being thorough, insightful, and scrying their crystal balls...... :)

ditto..at this point I have put in so much work to have proper record keeping that it would be stupid not to keep it up so I never have to panic like this again.

my point was with Traci lords is that was before 2257 and she had to show ID which she had to show she was of age. THe adult industry never wanted children in their productions but its accepted when they lump us in with child pornographers. Look at ASACP they took adult site out of their name, it gives the impression you cant be in adult and be against CP.

The ruling appears to spill a little wind from the fed's sails - a shot across the bow of Bush's little Gonzalez's puppet.

Hopefully this good news is a precursor to Bush's impeachment in 2006 on illegal wiretapping activities.

I read the Judge's order today and it tempered any celebration I initially felt. The Judge in this case was not very impressed with many key issues such as privacy, first amendment and the law being unduly burdensome. Were it not for precedent that the Judge was compelled to follow in Sundance, I think this case might have had a very different result already. Kudos to the FSC on their strategic planning of venue and for winning this battle, however close it might have been.

There is alot of work to do here for the FSC lawyers is the message I got from the Order.

As far as debating whether the DOJ will prosecute non FSC members, while the law is pretty clear that the injunction is only applicable to FSC members and named plaintiffs in the case, I do agree that there is a potential for the prosecutors to get a very negative response from another jurisdiction since this case is ongoing and some results have already been reached. The potential to have their asses handed to them in a very public manner certainly will chill the desire for the DOJ to prosecute.

On the other hand, if I was a prosecutor who detested Company A's business, their business was in a jurisdiction with friendly law on the books, and I wanted to break a "bad guy" down financially, well yeah it would be worth considering. Remember that to get to a similar result that the FSC has reached will require significant legal funding, and maybe the Feds might just choose a small guy who they know doesnt have the backing to withstand a full court DOJ press. Maybe if I was a prosecutor, I could use the 2257 as a vehicle to just toss the place and look for evidence of other crimes. It doesnt mean I have to actually prosecute 2257 but the law allows me to knock on his door and be let in...

Bottom line IMO is if you are not an FSC member, now is not the time to be asleep at the wheel when it comes to records and you be wise to reaffirm that all aspects of the your business can withstand some level of scrutiny by government agents.

*thumbs up FSC*

Excellent post. Small fish, including myself, often take comfort in the fact that they're small fish & look to the big sites with highly questionable content to be prosecuted first. I'm sure a company like Extreme can afford a lot more billable legal hours than I could to keep up the good fight.

Bump for these wise words.

The hole idea of secondary producers in 2257 (except for the hidden agenda of making it hard to promote porn) is not only to protect children from beeing exploited, but also to force the secondary producer to verify the age to avoid participating distribution of not-verified material.

Even if secondary producers get excempt from keeping records, they can still go to jail for much longer, under other paragraphs....and without any law enforcement, its all based on trust, which is quite risky in this business. Besides that, its about communication, because not all small fish have the guts or motivation to confront a 'big player', by asking for verification.

'Something better'... I think the optimal solution would be that all part of the industry, producers - processors and so on, sit down together and decide that it need stricter selfregulation.
Some things that would make it less risky and trustfull would be that the promoters would have to identify themself with some ID before approved as affiliate and sign a privacy agreement. At the same time, all paysites should have passwords on their programs and age verifications inside the webmasters area. If there are third-party processors involved, their part should be to approve/verify the program.
I know, its administration, but I think its worth it.