DENVER, CO – Yesterday afternoon, United States District Court Judge Walker D. Miller issued his much-anticipated ruling on the motion for a preliminary injunction in the Free Speech Coalition’s (FSC) challenge to federal labeling and record-keeping regulations under United States Code 18 §2257.While the FSC said in a written statement that their legal team is still assessing Miller’s ruling, the trade association also said their “immediate reaction” was that the ruling constituted “a substantial and welcome blow to the government’s regulatory scheme.”

As expected by most legal experts, Miller ruled that, with respect to the issue of “secondary producers,” he was bound by the Tenth Circuit’s ruling in Sundance v. Reno.

In his ruling, Miller wrote: “None of Defendant’s arguments change the reality that Sundance is binding upon me. The Tenth Circuit specifically held that § 2257(h) is unambiguous and that plain language of the statute excludes persons ‘who basically have had no contact with the performers …. even were I to agree that the statute is ambiguous, I am bound by principles of stare decisis to hold that the statue is unambiguous. Only the Tenth Circuit or the Supreme Court can change established Tenth Circuit precedent.”

Based on his obligation to honor the Sundance decision, Miller said that he had to conclude that the FSC had 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.’”

In their written statement, the FSC said that an analysis of the ruling and an “official reaction” from the FSC would be issued as soon as possible, but added that ”what can be stated without reservation, and about which we are clearly pleased, is that the ruling enjoins the secondary producer provision of the regulations.”

Miller, however, was not convinced by the FSC’s First Amendment challenge to the 2257 regulations, writing that the “statute and regulation do not constitute a ‘prior restraint’ as traditionally described by the Supreme Court.” Miller added that “whether the statute and regulations are framed as a de facto ‘prior restraint’ or a de facto ‘ban,’ none of the cases Plaintiffs rely on provide me with any basis for analyzing the statute and regulations with the level of scrutiny required for a law that actually forbids expression.”

Judge Miller was similarly unreceptive to arguments offered by the FSC that the regulations are ineffective in their stated goal of preventing the production of child pornography.

“Plaintiffs do not convince me that the statute and regulations do not advance the government’s interest in preventing child pornography,” Miller wrote in his decision, adding that “§ 2257 advances the abatement of child pornography in fundamental ways.”

In coming to this conclusion, Miller relied on a ruling by the D. C. Circuit in ALA v. Reno, in which the DC Circuit found that “forwards three goals: It ensures that primary producers actually confirm that a prospective performer is of age; it deters children from attempting to pass as adults; and, most important, it creates the only mechanism by which secondary producers (who by definition have no contact with performers) can be required to verify the ages of the individuals pictured in the materials they will be producing.”

Miller next addressed the FSC’s argument that the burden imposed by the regulations is overbroad in scope and severe. Having already determining that the FSC was likely to prevail with respect to the application of 2257 to secondary producers, Miller focused on the burden that would be imposed upon the remaining producers covered by 2257: “primary producers.”

Regarding the issue of maintaining a copy of each depiction covered by the regulations, a requirement which the FSC had argued was unduly burdensome on producers, Miller’s ruling is a bit of a split decision.

“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 –with two exceptions,” Miller wrote.

Miller specified “so-called live internet chat rooms” as the first exception to his determination that the rulings are not unduly burdensome. Noting that the plain language of the regulations can be read to mean that operators of chat rooms and live feeds would need to archive their feeds in their entirety – which would mean multiple feeds 24 hours a day for many operations – Miller agreed with the FSC that compliance would present an unreasonable burden on such producers.

“Plaintiffs assert that to do so would involve extraordinary computer capacity of terabytes (1 trillion bytes) and petabytes (1 quadrillion bytes) on an annual basis which could cost as much as $15 million dollars annually,” Miller wrote. “Defendant does not present any contravening testimony concerning chat rooms.”

The other exception to his ruling that 2257 is not overbroad is the requirement that producers maintain a copy of any URL associated with a depiction on the internet. Miller said the language of 2257 was “not clear on this issue,” but added that even the Government’s own expert witness “testified that it would be impossible to comply with this requirement.” Miller added: “Consequently, to the extent § 75.2(a)(1)(ii) requires a producer to maintain records of URLs or other identifying information from websites outside of the producer’s control, Plaintiffs have demonstrated a substantial likelihood that this is overly burdensome.

Judge Miller was also unreceptive to the FSC’s argument concerning privacy rights. Miller asserted a distinction between the level of protection afforded to pornography as opposed to other forms of speech, writing that “the cases which might arguably support Plaintiffs’ position, Buckley and McIntyre, both addressed laws impacting political speech, which, despite Plaintiffs’ counsel’s protestations to the contrary, is viewed differently than pornography under First Amendment case law.”

Miller also found that the FSC had not established sufficiently that compliance with the labeling and record keeping requirements would put adult performers at personal risk.

“With regard to the performers’ privacy concerns, they appear to relate entirely to the disclosure of their identification cards to secondary producers,” Miller wrote. “However, I have already ruled that the statute and regulations should not be applied to some secondary producers under Sundance. Furthermore, Defendant 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. Under these circumstances, Plaintiffs have not demonstrated a substantial likelihood of success with regards to their claim that the statute and regulations infringe upon protected privacy rights.”

The scope of the preliminary injunction Miller issued is bound to be met with mixed emotions in the adult industry, as well.

While the ruling specifies that the DOJ is enjoined from “treating any of the Plaintiffs or members of plaintiff Free Speech Coalition as ‘producers’ under 28 C.F.R. part 75 or persons or entities ‘produc[ing],’” it also appears to qualify this prohibition with the caveat “to the extent that plaintiff or member of plaintiff Free Speech Coalition’s activity does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performer.” The DOJ is also enjoined from enforcing

Miller’s ruling does not appear to explicitly address the issue of effective membership date of FSC members; at this point it is not clear if future or pending members of the FSC are covered under the terms of the preliminary injunction.