DENVER, CO — In a ruling filed Friday, March 30th, U.S. District Court Judge Walker D. Miller issued a decision granting in part and denying in part the Attorney General’s motion for summary judgment in the case of Free Speech Coalition v. Gonzales, the FSC’s legal challenge to the federal record keeping requirements commonly referred to as “2257 regulations.”In his ruling, Judge Miller dismissed all but four of the FSC’s claims. Those remaining 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 Tenth 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.
Judge Miller observes, however, that “since neither party has briefed the effects of the new amendments [to 2257], I will not grant summary judgment at this time.”
Instead, Judge Miller ordered the FSC to “show cause, on or before April 16, 2007, why summary judgment should not be granted on this claim.” The Attorney General then has until April 30th to respond.
Judge Miller disagreed with the FSC argument that the regulations are content-based and constitute a prior restraint on free speech.
“After considering the parties’ arguments… I continue to find, for substantially the reasons given in my prior order, that there is no prior restraint, the statute and regulations are content-neutral, and intermediate scrutiny applies,” Judge Miller wrote in his decision.
The judge also states in his ruling that “little has changed since my prior ruling, as Plaintiff has not produced any additional evidence in response to the Attorney General’s summary judgment motion.”
Judge Miller was not receptive to the FSC claims that various terms in the statutory language of 2257 are vague and/or overbroad, and granted the Attorney General summary judgment on several such claims.
In its claims, the FSC also argued that the 2257 statute and regulations violated the privacy rights of (a) performers by requiring that primary producers provide secondary producers with a copy of the performer’s identification card, which may contain private information (such as a residential address) and (b) producers who work out of their homes by mandating disclosure of the actual place of business on a label.
Judge Miller notes that in response “the Attorney General has suggested that primary producers may redact the month and day of birth, address and social security number.” As in his prior order, Judge Miller ruled Friday that “this construction is fairly possible,” and issued summary judgment on that claim, as well.
Adult industry attorney Larry Walters told YNOT that he had “only begun to digest the decision,” but commented that the “most important fact for the adult industry is that the preliminary injunction [granted by Judge Miller in December of 2005] was not lifted.”
“At least for the time being, and in the short term, the injunction stands,” Walters said, noting that fact could change soon; given the deadlines Judge Miller issued for the FSC to show cause for its ultra vires claim, by early May the judge will be equipped with the information he needs, as Walters put it, “to assess the continued viability of Sundance.”
Other attorneys contacted by YNOT today also refrained from detailed analytical comment, as they had not yet had an opportunity to go over the decision in fine detail.
Attempts to contact FSC representatives for comment were unsuccessful as of press time for this story. YNOT will follow up with further reaction analysis from the FSC and other adult industry attorneys in the days ahead.
