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Free Speech Coalition v. Gonzales (2005)

2257 Litigation Summary Report (as of August 2006)
2257/4472 FAQ
Updated 2257 FAQ   (as of May 1, 2007)
Legal Documents and Relevant Links

Introduction

If you are a webmaster, magazine publisher, video producer or consumer of adult entertainment, you have probably heard of 18 USC 2257, the Federal Record Keeping and Labeling Requirements.  The following information will give you an introduction to the law, general compliance guidelines, and an explanation of what the Free Speech Coalition has done, and is continuing to do, to limit the adverse impact this law has on our members and the industry.

The adult entertainment industry has been in the sights of the federal government for years.  The Attorney General’s Commission on Pornography (“Meese Commission”) was established at the request of President Ronald Reagan in 1985.  The Commission was tasked to “determine the nature, extent, and impact on society of pornography in the United States, and to make specific recommendations to the Attorney General concerning more effective ways in which the spread of pornography could be contained, consistent with constitutional guarantees.”  One recommendation that was made, and is the cause for concern for all in the adult entertainment industry, was Recommendation 37.

“Congress should enact a statute requiring the producers, retailers or distributors of sexually explicit visual depictions to maintain records containing consent forms and proof of performers’ ages”

This recommendation resulted in the enactment of 18 USC 2257 in 1988. Recently, the Attorney General enacted regulations about 2257 Compliance that has the adult industry up in arms, with the Free Speech Coalition leading the charge for their repeal.

2257-The Law and Compliance

Following years of litigation and negotiations with the Federal Government, compliance with 18 USC 2257 has been required since 1995.  As of June 23, 2005, The Record-Keeping and Record Inspection Provisions of the Child Protection Restoration and Penalties Enforcement Act of 1990 and PROTECT Act, located in the Federal Register, contain the most recent regulations for complying with 18 USC 2257. 

It is important to note that the failure to comply with 18 USC 2257 could result in up to 5 years in jail, civil fines, or a combination of civil and criminal penalties. Therefore, it is important to seek advice from an attorney.  As a benefit of memberships, you will also have access to the FSC Attorney Referral Service.

This information is intended in no way to be legal advice, and is meant solely to educate you about 18 USC 2257.  The general requirements of the law are as follows:

 

  • Creating a record for each performer used in a depiction of sexually explicit conduct in order to verify that they are at least 18 years old.  As a member of

The Free Speech Coalition, you will have access to our 18 U.S.C. § 2257 Records Keeping Compliance Form.

  • Maintaining the records in a particular manner at the producer’s place of business for at least 7 years.  Copies must also be maintained by ‘secondary producers’ of the content in question.
  • Providing a statement describing the location of the records and availing your business to unannounced, warrantless, “administrative” inspections by government officials for at least 20 hours a week so they can go through these records to ensure they comply with the regulations.

 

There are many problems that business owners face in terms of complying with this law.  Privacy concerns abound relating to the public disclosure of the location of adult entertainment producers.  The fact that the government can interrupt your business unannounced, to conduct compliance inspections, is also chilling.  There is also nothing in the regulations that punish those who use fraudulent documents. 

The Free Speech Coalition has been fighting for its members to protect them from this obvious government overreaching.  In keeping with our mission, the Free Speech Coalition has undertaken Lobbying and Litigation efforts to protect your rights to produce and consume adult entertainment in the face of this latest act of government overreaching.

 

Lobbying Efforts

After the Free Speech Coalition was alerted to the proposed regulations for 18 USC 2257 in June of 2004, we took action.  We submitted comments to the government expressing our concerns about the new regulations and their application to this new medium after, then Attorney General, John Ashcroft announced that 18 USC 2257 was being expanded to include the Internet.  The seven main points that we addressed were:

  1. The regulations should be effective from June 23, 2005, instead of July 3, 1995.
  2. The definition of “producer” is unlawful and burdens too many people.
  3. The record-keeping requirements are unconstitutional, unclear, and are too   burdensome.
  4. The record-shifting requirements for secondary producers are unconstitutionally burdensome.
  5. The inspection provisions are in some respects improper and in other respects incomplete.
  6. The disclosure statement requirements are confusing and, in many cases, too burdensome.
  7. The proposed rule contains some minor grammatical errors and drafting problems.

Even though we submitted these comments and lobbied for their consideration, the government approved the Final Regulations, as recorded in the Federal Register. The Free Speech Coalition continued fighting, though, and filed a lawsuit to have the regulations declared Unconstitutional.

Litigation

Despite the Free Speech Coalition's Lobbying efforts regarding 2257, the regulations went into effect on June 23, 2005.  Understanding the devastating impact these regulations were going to have on our members and the industry, the Free Speech Coalition filed a lawsuit to have these regulations declared unenforceable and unconstitutional.  In doing so, we have been able to prevent enforcement of the law against our members for the time being.  It is important that you visit this site often to keep up with this lawsuit since future court decisions will have an impact on the adult entertainment industry. You can see the lawsuit, other legal documents, and articles in the media by clicking on the links below.

Litigation is a very expensive endeavor.  Your support is critical to our success.  Whether you become a new member or make a donation to our 2257 litigation fund, we need your help.  For more information, please contact The Free Speech Coalition at 1-866-FSC 9373 to speak with a membership representative about how you or your company can partner with us as we continue this fight to preserve civil liberties.

Preliminary Injunction Granted

On December 28, 2005, Judge Walker D. Miller ruled on the motion for a preliminary injunction in FSC v. Gonzales, granting the Free Speech Coalition a substantial, though partial, victory. The judge essentially struck down the secondary producer provision of the regulations while leaving intact the primary producer obligations until the full case is heard in court. Both sides have filed motions to appeal this initial verdict, and FSC has filed an opening brief with the 10th Circuit Court if Appeals, available below.

Please check back with this website for updates regarding 2257 and FSC's challenge to the regulations.

The Future of 2257

The fight is still going on. The lawsuit is ongoing and the federal government is already gearing up to make the impact of 2257 even more devastating.  Just look at the legislation introduced by Representative Mike Pence (R-IN) and Senator Orrin Hatch (R-UT) you can see that the fight is not over.  Your support helps us to keep fighting in the courts and on Capitol Hill with our Federal lobbyists, The Raben Group.

Documents
Text of HR 4472, Title V (Signed into law July 27, 2006)
18 USC 2257  (as amended in 2006)
New 2257 Regs Published in Federal Register
May 24, 2005
2257 Talking Points
2257 Record Keeping Compliance Form

Legal Documents:
Original 2257 Complaint
June 17, 2005

Motion for a Temporary Restraining Order (TRO) June 17, 2006

Supplemental Motion for TRO June 17, 2005

DoJ Brief June 21, 2005

DoJ Exhibits June 21, 2005

Stipulation Regarding Motion for TRO June 24, 2005 

Order Granting Motion to Appoint Special Master June 29, 2005

DoJ Clarification Letter to Plaintiff's July 18, 2005

Plaintiff Pre-Hearing Brief Suppoting Motion for Preliminary Injunction July 22, 2005

DoJ Brief Opposing Motion for Preliminary Injunction July 22, 2005

Plaintiff Reply Brief in Support of Preliminary Injunction July 27, 2005

DoJ Corrected Response to Plaintiff Pre-Hearing Brief July 28, 2005

Plaintiff's Amended Complaint Sept. 14, 2005

DoJ Motion to Dismiss December 22, 2005

Judge's Preliminary Injunction Order December 28, 2005
Plaintiff Response to DoJ Motion to Dismiss February 21, 2006
DoJ Notice of Appeal February 22, 2006
Plaintiff's 10th Circuit Opening Brief May 3, 2006

Updated 2257 FAQ May 1, 2006

H.R. 4472 - "Children’s Safety and Violent Crime Reduction Act of 2005"

Order Partially Vacating Preliminary Injunction and Administratively Closing This Case  May 2, 2007


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