CANOGA Park, CA — On Wednesday April 25th, Colorado Federal District Court Judge Walker Miller held a status conference between the Free Speech Coalition 2257 legal team and attorneys representing the U.S. government in the case FSC v. Gonzales, the FSC announced in a press release issued Monday.The status conference was requested by FSC attorneys in conjunction with government attorneys following the ruling issued by Judge Miller on March 30th, in which the judge dismissed some of the FSC’s claims and allowed others to proceed, in light of changes made to 18 U.S.C. § 2257 by way of the Adam Walsh Act.
“We are awaiting the Court’s minute order,” the FSC states in its release. “Upon issuance of that Order, it will be posted on our website along with attorney comments.”
In its release, the FSC concedes that it “is expected that the Judge will dissolve portions of the preliminary injunction which ordered the Government not to inspect secondary producers,” but adds that such an action on the part of the judge “does not mean that inspections of secondaries are likely in the foreseeable future.”
Quoting the FSC litigation team, the FSC release also states that “We have no reason to anticipate imminent inspections of secondary producers. The reasoning underlying Judge Miller’s preliminary injunction remains valid; that is, prior to July 27, 2006, there was no statutory authority for record-keeping by secondary producers. We are awaiting regulations which will announce the Department of Justice’s position on what secondary producers’ responsibilities are under the July 27, 2006 amendments.”
First Amendment attorney Jeffrey Douglas, also Board Chair of the FSC, adds that the FSC is “confident that no court would allow a retroactive obligation to be placed upon secondary producers for which there was no lawful authority when they acquired the images.”
“Furthermore, until the new regulations are finalized, how can any secondary know what their obligations are?” asks Douglas. “For instance, they cannot comply with the regulations applicable to primary producers – actual inspection of the original ID is impossible for a secondary producer.”
In its release, the FSC adds that should there be “any indication that the Government is claiming such authority, the Free Speech Coalition will immediately seek another court order.”
In his March 30th ruling, Judge Miller dismissed all but four of the FSC’s claims. The surviving claims are the FSC’s “general First Amendment claims to the extent they allege that 28 C.F.R. § 75.2(a)(1)(i) is unduly burdensome as to internet chat rooms;” the FSC’s claim that C.F.R. § 75.2(a)(1)(ii) is “unduly burdensome with regards to websites not under the control of the record-keeper;” the FSC’s claim alleging a violation of the Ex Post Facto Clause of the U.S. Constitution; and the FSC claim that the regulations are “ultra vires” (literally, “beyond power.”)
With respect to the FSC ultra vires claim, Judge Miller notes that in his preliminary junction order issued in December of 2005, he concluded that he was “bound Sundance as urged by Plaintiffs” – a reference to the case Sundance v. Reno.
In Sundance, the 10th Circuit held that the regulations were invalid as ultra vires to the extent to which they regulated those whose activity “does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted.”
As observed by Judge Miller, the amendments to 2257 made by Congress under the Adam Walsh Child Protection and Safety Act of 2006 “appear to essentially restate the Attorney General’s regulations,” arguably rendering the FSC’s ultra vires claim moot.
In his March 30th ruling, Judge Miller ordered the FSC to “show cause, on or before April 16, 2007, why summary judgment should not be granted on this claim.” On April 13th, the FSC announced that it had filed a motion seeking “clarification and modification” of the judge’s order.
