2257 Injunction Granted

[tombarr]

Great news i must say!

FSC Article

http://www.freespeechcoalition.com/d...rdec28_000.pdf

[Xstr8guy]

From the FSC article...

“…Plaintiffs [FSC et al] have shown a substantial likelihood of success of establishing that the statute and regulations may not be enforced as to secondary producers who are not involved in any activity that involves “hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted. U.S.C. 18 §2257 (h) (3)”

I must say... THIS MAKES MY DAY/WEEK/MONTH/YEAR! My FSC donations were well worth it!

[KellyTaylor]

From the FSC article...


I must say... THIS MAKES MY DAY/WEEK/MONTH/YEAR! My FSC donations were well worth it!

HOT DAMN!! that rocks... But an injunction is good for now. But doesnt mean it will go away... But hopefully we will get everything everyone wishes for *winks*

[chadknowslaw]

Yeah for the Semi-good guys!!! [I am not a big fan of the current FSC]

This is just one round in a long long fight, and the porn-fearing hatemongers that like to call themselves christians will not just shake their heads and say, "Dag nabbit, we lost!" throw their hands in the air and walk away.
This is a long-awaited and good win.

I am reading through the 29 page decision now, so hopefully I will have some real insight shortly!

[Matt 26z]

No surprise here, but the big question left is will the DoJ recognize this ruling?

Everyone assumed they did just that after Sundance, and then suddenly the updated 2257 popped up with the DoJ claiming that the Library Assn. ruling cancels out the Sundance ruling.

I will not feel completely safe regardless of any ruling until the DoJ is forced to actually change the text of 2257. They are constantly going to cite the Library Association case ruling that supports secondary requirements.

On the plus side, the secondary producer rulings are now two on one.

[Lee]

Just be aware, this isnt a victory by a long short, more of a temporary reprieve, there is a long battle ahead for the adult industry, just because this injunction has been granted, that doesnt mean anything until the final court case is over and done with and the 2257 regs have been re-written and, who is to say that once they are re-written there wont be yet another injunction needed, this thing is going to continue for many years.

Regards,

Lee

[chadknowslaw]

The partial granting of a preliminary injunction in the Colorado FSC case was mostly good news. A few points were won, a few were lost, and the Judge included a lot of hints as to how he will rule when this case really goes to trial.
FSC argued that §2257 itself is unconstitutional in that it infringes upon Free Speech rights so the whole thing should be thrown out. The Judge shot that down saying, “…Plaintiffs do not provide convincing evidence that the impact of the statute and regulations effectively ban sexual expression.” Those are strong words, and that indicates to me this Judge is not going to change his mind when trial time comes! He also states, “…I agree with the Sixth Circuit’s finding that “[t]he government’s goal of preventing child pornography through the record-keeping provisions of the Act clearly do not attempt to regulate the speech of {Plaintiffs} because of disagreement with messages they convey.” And “Plaintiffs do not convince me that the statute and regulations do not advance the government’s interest in preventing child pornography.” That means to me that it is highly unlikely that 2257 will be overturned at the trial court stage.

However, the Judge did find that the regulations were over-burdensome as applied to chat rooms and keeping URL’s from other sites that you don’t control. He states, “Particularly with regard to the circumstance of the chat room, a narrow tailoring may well require no more than the identification of the performer as otherwise prescribed without the necessity of maintaining a copy of the entire time of depiction.” He doesn’t give real direction as to what to do from here, however.

Next he finds that trying to maintain URL’s from websites you do not control is overly burdensome—which means that if you put up a pic, you are not responsible for logging all the URL’s of all your affiliates that put that pic up too. You are still responsible for URL’s from your own websites, which is still a huge burden. The Judge doesn’t see it that way yet.

Some REALLY good news, which validates what I have quietly told clients for the past few months—You can redact model IDs!! “[DOJ] notes that there is no reason why the address on ID cards could not be redacted to protect the performers’ confidential information, including address, actual day of birth, social security number, etc.” So anyone that feels obligated to send out model ID’s with their content should take the time to pixilate or black out that information from the model IDs.

The Judge also agrees that there is no reason why anyone outside the 10th Circuit should not have relied on the Sundance case, “I disagree that Plaintiffs acted unreasonably by relying on the decision of the one court of appeals that has directly addressed the issue.” There are lawyers that advised their clients not to rely on Sundance, and lawyers like me that told their clients it was OK to rely on Sundance. We all make mistakes.

Here are the things I find very troubling:

The Judge does not think that keeping a copy of every depiction is overly burdensome. “Plaintiffs have not met the preliminary injunction standard to show a substantial likelihood that the requirement to keep a copy of each depiction is overly burdensome”. This is not good. This means that all producers are still required to keep a copy of every depiction. Luckily this only applies to the “primary producers” EXCEPT live web cam sites. Live web cam sites don’t need to keep a full copy of the time the performer is on; for now, just an ID.

I am also concerned that the ruling is worded to apply only to FSC members. While preliminary injunctions only apply to the parties of a suit, one of the parties here is the DOJ. The DOJ must treat all persons equally under the Constitution, so constitutionally even though the Judge’s language only protects FSC members, the Equal Protection language of our Constitution says the DOJ cannot enforce those provisions against a non-member while ignoring a member. The FSC deserves to use this victory in its membership drive, but it should not deceive people by telling them they are not protected unless they are members of FSC. In reality, this ruling does protect everyone.
The drawback is that even though there is an injunction, it only prohibits enforcement of a small portion of the 2257 regulations. The rest are intact and enforceable.

So, there is a little good news, but 2257 is still alive and kicking. This is not time to let your guard down or stop keeping records if you are taking pictures or video.

[Lee]

The FSC deserves to use this victory in its membership drive, but it should not deceive people by telling them they are not protected unless they are members of FSC.

Im sure the FSC would never do such a thing

Regards,

Lee

[gaystoryman]

Thanks for that insight Chad.. interesting reading. :coffee:

[IntenseCash.com]

Thanks for posting that Chad. You are always a great help in understanding what exactly is going on.

Mark