Judge Considers Porn Regs Injunction

Free Speech Coalition, representing adult entertainment producers, challenges new rules

The question of whether strict new federal justice department rules placing broad regulations on the adult entertainment industry will be allowed to stand moved closer to an answer this on August 2 during a preliminary injunction hearing in Denver.

Members of the Free Speech Coalition, a national trade association of the adult entertainment business, sued U.S. Attorney General Alberto Gonzales seeking a preliminary injunction against enforcement of rules added to the 1988 Child Protection and Obscenity Act. The new regulations, which were announced in May, increase record keeping and inspection requirements for producers and distributors of adult entertainment. The official explanation for the new regulations is the goal of making sure all performers appearing in adult material are over 18 years old.

The Free Speech Coalition maintains that the regulations are overly burdensome and expensive and could eventually have a chilling effect on free speech.

In addition to opening up producers of adult content to greater government scrutiny, the new regulations extend age verification rules to distributors as well. The new regulations would require the re-packaging of videos and DVDs with sleeves that prominently display where each model’s age verification records are stored.

Adult Web sites appear to be the primary target of the initiative. Under the new regulations, Web sites with sexually explicit material must maintain verifiable, official government identification records of every model or performer that appears on their pages for seven years. The records must be available for government inspection at that location. Web sites advertising personals would need to maintain proof-of-age identification on file of all individuals posting sexually explicit photographs. Failure to comply could result in five years prison time for first-time offenders, and up to ten years for a second offense.

U.S. District Judge Walker D. Miller heard the case during a three-hour hearing and promised to rule within a few weeks on the narrow question of issuing an injunction barring immediate implementation of the regulations. Plaintiffs are eagerly awaiting his decision, since an agreement between the Free Speech Coalition and the Department of Justice, holding off on the enforcement of the law against FSC members, expires September 1.

Should Miller grant an injunction, the plaintiffs could then proceed to argue the merits of their case.

“Free Speech Coalition attorneys came out of it more pleased than they expected to be, mostly because the judge seemed truly interested in understanding the nuances of the regulations” according to the group’s spokesperson Tom Hymes. “We expect a decision by the judge in two or three weeks” Hymes said.

During the hearing, the plaintiffs’ attorney Paul Cambria argued that the new regulations were enormous since Web masters would be required to maintain and index the URL of every appearance of each sexually explicit image and keep an electronic copy of each page.

The Free Speech Coalition noted in a detailed August 4 press release, since adult web pages are sometimes changed daily or hourly, even while keeping the same URL, producers would be required to keep dozens or possibly hundred of copies of pages with the same URL as long as hardcore images appeared on them.

The government argued its intent was to deny child pornographers access to commercial markets.

Department of Justice attorney Sam Kaplan argued that if somebody films a performer engaged in sexual activity and sells it to a Web site, and the site publishes it to the world, that entity has an obligation to verify the ages of the performers in the depiction. Kaplan stressed that was the intent of Congress in writing the original law. But according to Hymes, “The government lawyers were at pains to support many of their conclusions and assertions.”

Additionally, there have been charges that the new 2257 regulations are a symptom of greater efforts by the Department of Justice to harass the adult entertainment business.

Opponents of the new rules are skeptical that the government’s true intention is to protect children. A few attorneys and other observers of the unfolding court and public policy battle believe that if the inspectors find record-keeping violations, they might offer violators the chance to dismiss the criminal sanctions for such offenses in exchange for a guilty plea by Web operators on a charge of obscenity. Obscenity prosecutions are politically beneficial in the administration’s ongoing quest to appease its right-wing base, these critics charge.

“It’s a lot harder to prove obscenity charges these days” according Lawrence Walters, an attorney who specializes in free speeches cases.

Walters, who has defended members of the online adult entertainment industry, said the regulations are a way for the government to place burdensome and confusing regulations and set traps for Web masters, in a effort to purge the Internet of pornography, not specifically to protect children from appearing in sexually explicit material.

According to the Free Speech Coalition, there have only been four documented cases of underage performers slipping into the legitimate adult entertainment industry over the past 20 years.

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