DENVER, CO – The Free Speech Coalition’s opposition to the amended 2257 record-keeping requirements has entered an important phase, as the parties in the case await Judge Walker D. Miller’s decision on whether to issue a preliminary injunction.Although the judge is unlikely to render a decision until sometime next week, adult industry attorneys are in agreement that both the hearing itself and depositions of government witnesses prior to Tuesday’s hearing produced positive developments for the plaintiffs.
“In my opinion, and in the opinion of the whole team, things did go very well at Tuesday’s hearings,” attorney Greg Piccionelli said. “We are fortunate to have a very good, very careful judge, who is going to carefully consider the arguments.”
Attorney Robert Apgood said it is no surprise that the hearing did not result in an immediate decision on the preliminary injunction.
“I don’t think anyone close to the case expected that,” Apgood said. “It’s a very significant decision, in that the judge is sending a signal, because his decision is going to be based largely on what he believes the plaintiffs’ likelihood of prevailing to be, once the case is fully adjudicated.”
A press release issued by the FSC characterized their outlook as “cautiously optimistic.” FSC Board Chair and criminal defense attorney Jeffrey Douglas characterized the hearing as “a significant milestone in the FSC challenge to this unlawful attempt by the government to chill protected speech… we have every hope to believe that, at the very least, the secondary producer provisions of the 2257 regulations will be enjoined by Judge Miller, and at best, that we will succeed in obtaining an injunction of the entire regulatory scheme.”
Piccionelli cautioned against hopes for a quick resolution of the issue, pointing out that the decision is going to be controversial, and likely to be appealed, regardless of which party prevails in this phase. “If we get what we want, the government will certainly appeal, and if the government gets what they want, we will certainly appeal.”
According to Piccionelli, the FSC was able to poke holes in several of the DOJ’s arguments, and expose significant problems in the language of the amended regulations, and even the government’s own expert witness agreed that certain requirements would be very difficult, if not impossible, for many “producers” to comply with.
The difficulty of accurately and comprehensively logging session IDs and other dynamically generated locations, maintaining a comprehensive list of URLs for all depictions, and storage of certain types of depictions, were specifically cited as burdensome requirements for producers.
Piccionelli said that lead attorneys for the FSC, Louis Sirkin and Paul Cambria, both made strong points and identified weaknesses in the government’s arguments supporting the need for the revised regulations, and the problematic language of the revised regulations themselves.
Cambria asserted that the 2257 regulations are not needed to discourage people from creating and distributing child pornography, stating that the potential penalty of 10 years prison time per child porn image was discouragement enough. Cambria also noted that one of the government’s own witnesses had conceded that the legitimate adult entertainment industry is not associated with the production of child pornography.
Sirkin questioned what compelling interest 2257 serves for the government, and pointed out that the lack of a requirement to record and disclose the date of production for a depiction undermines the value of the records where age verification is concerned. As Piccionelli puts it, “Without a record of the date of production, how can you verify that the person depicted was of legal age at the time of the depiction?”
In June, the FSC struck an agreement with the DOJ, under which authorities agreed not to conduct any inspections of, or pursue any 2257 claims against, FSC members through September 7th, 2005. The agreement does not cover non-FSC members, though, and the government reserves the right to inspect records and prosecute parties that are not FSC members or other plaintiffs in the case.
