Porn Valley- The Free Speech Coalition, an advocacy group for the adult entertainment industry, filed an appeal with the 10th Circuit Court of Appeals early this month challenging sections of a recent preliminary injunction halting enforcement of new federal regulations against sexually explicit online content.
The injunction, issued by U.S. District Court Judge Walker Miller on December 28, extends a moratorium against enforcement of the Department of Justice’s amended rules relating to Title 18 U.S. Code 2257, the Recordkeeping and Labeling Act, part of the Child Protection and Obscenity Enforcement Act of 1988.
The proposed regulations, which were scheduled to take effect last June, would require that Internet content providers maintain records documenting that all individuals appearing in sexually explicit images are at least 18 years old. The justice department sought to apply the rules to “secondary producers” – those that reproduce or host material from other sources, such as online dating and chat sites that feature customer-created photographs.
Early last summer, several gay sites that host adult material, including Gay.com (owned by PlanetOut), temporarily restricted access to sexually explicit images while they reviewed the pending law. Other sites, such as boundandgagged.com, permanently discontinued operation.
Will Doherty of the Online Policy Group told the Bay Area Reporter at the time that the stricter regulations were “an outrageous attempt to halt the publication and exchange of images of adults engaged in consensual activity” that would have “a chilling effect on everyone from the casual and consensual poster of personal images to legitimate producers of sexually explicit adult entertainment.”
A few days before the amendment’s effective date, FSC filed a lawsuit before the 10th Circuit in Denver, arguing that the proposed regulations were unconstitutional, overly burdensome, and “jeopardize the privacy and safety” of the depicted individuals, who would be required to provide their legal names and addresses along with their ages.
In late June, Miller agreed to suspend enforcement of the new regulations against FSC members until September 1. The injunction was later extended for a month each on four separate occasions.
In his December ruling, Miller said the plaintiffs had demonstrated “a high likelihood of success” in prevailing in their secondary producer claim. Citing an earlier precedent, Sundance Associates v. Reno, he held that the 2257 regulations do not apply to “mere distributors” who are not involved in “hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performer.”
Miller also accepted the plaintiffs’ argument that the proposed record-keeping requirement “creates an undue burden” on operators of live chat rooms or webcams.
While generally pleased with the outcome so far, FSC filed an appeal this month contending that there remain several constitutional issues concerning free speech and privacy rights that either were not dealt with in Miller’s injunction or were improperly rejected by the judge.
“I would have liked the whole law [2257] to be enjoined from scratch,” said H. Louis Sirkin, the plaintiffs’ lead attorney. “There are a lot of First Amendment issues that had been raised in the pleadings that the court didn’t address.”
While Miller’s initial June ruling was interpreted as applying only to then-current FSC members, the organization now says that “all up-to-date FSC members are covered under this ruling, whether they joined a year ago, today, tomorrow, or anytime up until a final ruling in FSC v. Gonzales.”
Nevertheless, FSC “strongly encourages” its members and others in the industry to comply with the 2257 regulations “as much as possible” until a final adjudication is handed down.