U.S. Asks Judge to Dismiss FSC’s Challenge to 2257

Dec 15, 2009 4:45 PM PST
WASHINGTON — The U.S. Attorney General’s office on Monday asked a federal judge to dismiss the Free Speech Coalition’s lawsuit challenging revised record-keeping rules.

The FSC and 14 other plaintiffs claim in the suit filed against the government in October that the revised 18 U.S.C. § § 2257 and 2257A regulations are unconstitutional, as well as an unfair burden placed to producers to comply with the regulations.

It has asked a judge at U.S. District Court in Philadelphia for a preliminary injunction over rules that require age verification for the adult entertainment industry.

But regulators in their response Monday contend that despite recent statutory amendments and the promulgation of new regulations, the FSC’s challenge presents very little that has not been addressed and rejected previously by other courts.

“As these courts have recognized, Congress’ compelling goal of preventing the sexual exploitation of children would be undermined if the record-keeping requirements allowed for exceptions on a subjective basis, such as where a producer believes that a performer is an adult, or where a producer believes that a depiction has artistic or social value,” the motion said.

“Congress’ adoption of an objective, universal requirement prevents circumvention of the rules through such subjective assessments.”

The government also said in its motion that while FSC’s 4th Amendment challenge relative to unreasonable searches is new, it fails to state a legal claim that could entitle plaintiffs to relief.

“For one thing, no search or seizure has as yet occurred, and courts generally refrain from addressing 4th Amendment issues in the abstract,” the motion said. “In addition, the inspections at issue are limited to the very records that producers must create and maintain to comply with §§ 2257 and 2257A.

“Moreover, producers need not keep these records at their own place of business, but may use a third-party custodian, in accord with the new regulations,” the motion said. “Given the fact that producers’ premises need never be entered if a third-party custodian is used, and that producers have no reasonable expectation of privacy in the records themselves, the inspection provisions on their face clearly comply with the 4th Amendment, and it is unclear whether an as-applied challenge would ever arise.”

Diane Duke, the FSC’s executive director, told XBIZ that the organization is continuing to move forward with the case and that the government’s motion was predictable.

“It is very typical in a case like this and it is what we expected,” she said.

The 14 plaintiffs also attached to the suit include the American Society of Media Photographers, which represents 7,000 members; Barbara Nitke, a teacher at the School of Visual Arts in New York and a commercial photographer; David Steinberg, a photographer and writer of sexual issues; Nina Hartley, a performer and website owner; Michael Barone, a photographer; Dave Cummings, an adult industry performer who owns numerous websites; Tom Hymes, an adult industry journalist who runs a website; Sinclair Institute, which operates sexual health clinics; Channel 1 Releasing, which operates a gay porn studio; Barbara Alper, a photographer; Carol Queen, a sexologist and feminist sex educator; Dave Levingston, a photographer; and Betty Dodson and Carlin Ross, who co-host a website.

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