CANOGA PARK, CA – As the adult industry debates the impact and implications of the ruling issued Wednesday by US District Court Judge Walker D. Miller in the Free Speech Coalition’s (FSC) challenge to federal record keeping and labeling regulations, the FSC’s chairman showed no hesitance in calling the ruling a “terrific win.”Jeffrey Douglas, chairman of the FSC, told YNOT that although an in-depth analysis of the ruling by the FSC is ongoing, his initial reaction is “very positive,” and that “short of getting everything you want, which we knew would not happen, this is the best you can reasonably expect.”
Douglas said it was clear that Judge Miller wanted to preserve the status quo regarding the 2257 record-inspection scheme that was established with the 10th Circuit’s ruling in the case of Sundance v. Reno, and that Miller’s ruling “does an admirable job of that.”
It came as no surprise that Miller didn’t contradict the Sundance ruling with respect to the secondary producer designation, Douglas said. “As a practical matter, he couldn’t really (dispense with the Sundance ruling),” Douglas said. “The government presented him with certain strategies and suggestions as to how he might part with that ruling, and the judge essentially told them, ‘You know I can’t do that.’”
Nothing about the ruling surprised adult industry attorney Robert Apgood, who in an interview with YNOT following the August 2nd hearing in the case said that it would likely be months before Miller returned a ruling, and that there was no chance the secondary producer provisions would be allowed to stand, due to Miller’s “hands being tied” by the Sundance ruling.
“The ruling is exactly what I expected,” Apgood said.
Apgood concurred with Douglas that the ruling is a positive development, noting the removal of the secondary producer requirements and archival burdens for live show operators as particularly good news.
Douglas said Miller’s ruling also addressed a pending question weighing heavily on the minds of many recent applicants to the FSC; the issue of whether new members of the FSC would be covered under the injunction. Miller’s ruling does not specifically address the question of when an FSC member becomes active, and that omission amounts to including all FSC members in the injunction, according to Douglas.
Both Douglas and Apgood were disappointed, but not entirely surprised, that Miller was less receptive to the FSC’s arguments with respect to privacy and security concerns resulting from the labeling requirements. Both attorneys noted that from Miller’s commentary, it appears that he was not disagreeing on logical grounds, so much as saying that he had not seen sufficient evidence to support the privacy concerns and other Constitutional issues raised by the FSC.
“It means we have an obligation to display the First Amendment issues in a way that the judge can really grab hold of,” Douglas said. Douglas added that with additional time to prepare for the next round, the FSC will be able to provide much more specific and compelling evidence and material to the court in support of their Constitutional challenges.
Douglas added that although Miller’s ruling and the injunction are significant victories, the FSC’s battle is far from over.
“We need help from the adult industry,” Douglas said. “We need people to come forth and serve as expert witnesses, to speak to the burden imposed on their businesses by these regulations. We need to show harm and a restriction on speech.”
Going forward, Douglas said that he is “very optimistic” about the prospects of success in the case. “Our estimations and predictions (after the hearing in August) were so accurate,” Douglas said, “we feel pretty good about the direction of things for the future.”
