SANTA MONICA, CA -- Criminal defense attorney Jeffrey Douglas, who is also the longstanding Chairman of the Free Speech Coalition, told YNOT today that he is “very confident” that a legal challenge to any new 2257 regulations would effectively halt inspections of so-called Secondary Producers before they begin. Douglas cited “very persuasive constitutional arguments,” including “new” arguments not available in the last round of 2257 challenges, plus “poor draftsmanship in the amendments to 2257” as reasons why a judge might issue an injunction against enforcement while the case is ultimately resolved in court.
"I'm very confident that an injunction will issue prior to the effective date of the regs,” Douglas told YNOT.
Diane Duke, the Executive Director of the FSC, agreed that the organization is “feeling pretty good” about its chances in court, and confirmed that it would indeed challenge any new regulations that are issued “unless they have changed them drastically” from the proposed regulations, which were issued previously this year. A public comment period for the proposed regulations ended in early September.
According to Duke, the government is likely to offer a 30 day “compliance” period after new regulations are issued. If offered, this compliance period would provide time for producers of 2257-regulated content to study the new regulations and attempt to bring their company into compliance. The government is not required to offer such a compliance period, however, and could elect to seek immediate enforcement after the new regulations are issued.
So what options are open to the FSC if it wishes to stop inspections of Secondary Producers before they begin?
YNOT spoke to Reed Lee, a constitutional attorney with J.D. Obenberger & Associates, and also a member of the FSC Board of Directors, who explained how the process worked in the last around.
“There was a 30 day period,” Lee explained. “FSC filed suit in Denver prior to the 30 days.” According to Lee, a temporary restraining order (TRO) was not necessary in the last round because the FSC attorneys reached an agreement with the government that effectively stopped enforcement of 2257 while the sides argued for and against a preliminary injunction. “There’s certainly reason to believe that that kind of procedure can work again,” Lee said, adding that if an agreement with the government could not be reached then there were “emergency” procedures in place that the FSC could use to seek a TRO. Absent an agreement with the government, a TRO would halt enforcement of the new regulations while the FSC argued for a Preliminary Injunction.
Asked to elaborate about the reasons for his optimism, Douglas explained that the Department of Justice is facing a “new extremely difficult obstacle” in this round of challenges, brought on largely due to misguided efforts from Congress to make 2257 tougher on the adult industry.
“The findings require certain inquiry on the part of the DOJ on how these regs affect the adult industry,” said Douglas. “The rules … are very specific and very complicated, and they've (DOJ) done none of it, ever. In addition, they are required to check and see if there are less burdensome alternatives ... they have not done so.”
So why doesn’t the DOJ just look into the alternatives then? Douglas argues that if they did, the adult industry “would be entitled to that same Hollywood exemption” spelled out in 2257A.
Although the DOJ has not yet examined the burden that the new 2257 rules would place on the adult industry, the FSC has in fact commissioned just such a study. Third party firm Georgetown Economic Services prepared a report on behalf of the Free Speech Coalition, and its findings were extremely damaging to the government’s case. According to Duke, the DOJ had previously argued that the economic impact of 2257 on the adult industry would be negligible. The Georgetown Economic Services report, however, paints a much different picture. Additional comments from Kelley Drye & Warren LLP, provided to the DOJ on behalf of the FSC and available on the FSC website, confirm the findings of the Georgetown Economic Services report.
One thing that nobody seems to know, however, is when the new regulations will go into effect. According to Duke it took the government eight months last time to issue the regulations after the public comment period had expired. But as Douglas points out, public comments this time around were considerably more complex.
Whether that means it will take even longer this time is anyone’s guess. In the meantime, adult industry companies can prepare for the worst and hope for the best.
