DENVER, CO – The Free Speech Coalition (FSC) announced Thursday that it has reached a deal with the government that will prevent 18 U.S.C. § 2257 inspections or prosecutions of FSC members until September 7, 2005. Only members of the FSC will be covered by the deal, and according to FSC representatives any concerned parties from the adult industry will need to be a member of the FSC by Saturday in order to be covered by the bargain.On August 8, 2005, the U.S. District Court in Denver will hold a hearing to decide whether a further injunction against enforcement of 2257 is warranted.

In exchange for the government’s agreement not to inspect or prosecute under 2257 during the agreed upon period, the FSC has agreed to submit its membership list to a “Special Master” appointed by the Court. The names on the list will not be available to the DOJ, but should it wish to initiate a 2257 inspection during the court battle it could get confirmation through the Special Master that the intended target is not a member of the FSC. If the DOJ is told by the Special Master that the intended target is a member of the FSC then the DOJ would not initiate the inspection. The membership list will be submitted to the Special Master next Wednesday, June 29, but will include only members of the FSC as of Saturday, June 25. That deadline will leave many people scrambling to join the FSC over the next few days.

All FSC members need to inform the FSC of any aliases or DBAs by Monday, June 27th, so that the list can be as complete as possible.

“On behalf of the entire adult entertainment industry, the FSC acknowledges the bravery and integrity of our co-plaintiffs, New Beginnings and Dave Cummings. We trust that the industry appreciates their willingness to take on the fight for justice on behalf of all of us,” read an FSC press release issued Thursday. “The FSC also expresses appreciation to our extraordinary legal team: H. Louis Sirkin, Paul Cambria, Art Schwartz, Jennifer Kingsley, Roger Wilcox, Michael Gross, Barry Covert and Michael Deal. Special acknowledgement also to Michael Murray, whose agreement with the DoJ in the Connections Magazine case in Cleveland, Ohio, laid the groundwork for this agreement.”

“Over the course of the next few months, there will be continuing proceedings, including discovery, that culminate with the August 8, 2005 preliminary injunction hearing. While we remain optimistic regarding our ultimate success in the litigation, the FSC encourages everyone to try to comply with the law to the extent that it is possible.”

Despite some assertions on adult industry message boards, the agreement does not equate to an extension of time to comply with 2257. It serves only to stop inspections and prosecutions during the agreed upon period. Should the FSC be unsuccessful in its court challenge, or in obtaining a further injunction, the government would then be free to prosecute companies or individuals in violation of 2257 during the time that was previously covered by the agreement.

The new 2257 regulations went into effect Thursday, meaning any adult industry companies or individuals not in compliance with 2257 are currently at risk of future prosecution, independent of their membership status with the FSC.

Additionally, the period of time covered by the agreement is not likely to span the entire length of the FSC’s court challenge. That means the FSC will still need to obtain an injunction from the Court at the August 8th hearing, before the agreement expires. Failure to obtain an injunction on August 8th could result in future inspections and prosecutions of FSC members after the agreement has expired and before the court battle is complete.

“The members of the Free Speech Coalition can breathe a collective sigh of relief, to be sure, and this will give the members time to look closely at their compliance and make sure they are taking steps to [comply with 2257],” said First Amendment attorney Larry Walters. “It doesn’t give much comfort to non-members, but I would hope and expect that the government would not be careless enough to [investigate] non-members in light of the [upcoming] constitutional challenge.”

Walters said that the courts might view any prosecution or inspections as an act of bad faith by the DOJ should they proceed with 2257-related actions against non-FSC members.

“I wonder … how it is that the Free Speech Coalition is going to be able to process all those members [by the deadline], and I hope that they have their lines open and are prepared for the onslaught of new members,” Walters added.

Walters said companies should be careful that they have signed up as an FSC member under the appropriate name or the appropriate company, since some adult businesses operate as more than one corporation under one parent company.

According to First Amendment attorney J.D. Obenberger of xxxlaw.net, the FSC deal is a victory for the adult entertainment industry.

“Clearly Paul Cambria and Louis Sirkin, standing on the forward edge of the battle area, have brought us back a tremendous initial success for not only the members of the Free Speech Coalition, but all people involved in adult entertainment, including the customers,” Obenberger said. “The agreement is a tremendous credit to the strength of the pleadings they filed. If the government didn’t fear the strength of the pleadings they wouldn’t have agreed to this deal.”

Attorney Eric Bernstein also spoke to YNOT about the deal.

“It’s an interesting deal. It’s going to be interesting to see whether or not the feds do try to test it,” said Bernstein. But would the government go after non-FSC members? “If they really think they have a winning test case, but I would hope after Extreme Associates that they would think twice about that one.”

Bernstein agreed with Obenberger about the government’s apparent lack of confidence in its case.

“I find it’s an interesting acknowledgement. If the DOJ truly believed it had a winner, it would not have made this deal,” said Bernstein. “If the government thinks it’s going to win, why would it make a deal?”

The FSC has argued that 2257 and its new regulations are excessively strict, burden Free Speech rights, overstep DOJ authority and raise significant privacy concerns. Prior to the agreement on Thursday the government issued a lengthy response to FSC arguments against 2257.

Arguing that it had the authority to extend 2257 record-keeping requirements to “secondary producers,” the DOJ cited the PROTECT Act:

“Plaintiffs assert that DOJ lacks the statutory authority to require secondary producers to comply with the record-keeping requirements in section 2257. Plaintiffs are mistaken. As set forth below, the new regulations’ definition of ‘secondary producer’ is consistent with the text, structure, purpose and history of section 2257, including Congress’ recent modification of the definition of ‘produce’ against the background of DOJ’s longstanding regulation of ‘secondary producers.’ DOJ’s definition similarly relies on the PROTECT Act’s ‘detailed legislative findings,’ which evinced Congress’ goal of stemming the proliferation of Internet child pornography, together with DOJ’s general knowledge of the industry, and intervening judicial decisions.”

Walters, however, isn’t convinced by the government’s arguments.

“I think they know they’re going to lose on that,” Walters told YNOT. He noted that the government seems intent on ignoring the Sundance ruling, which contradicts the DOJ’s claims that it has the authority to extend record-keeping requirements to secondary producers.

The DOJ also rejected privacy concerns, and argued that the FSC has not shown that 2257 causes any significant privacy burden to adult industry participants. In its arguments, the DOJ seemed to suggest that erotic speech deserves less legal protection than political speech.

“There is also a world of difference between anonymous political speech and participation in hard-core pornography, which in virtually all respects is the opposite of anonymous,” the DOJ response read.

The government also suggested that the FSC suit is flawed because it is bringing up old issues. According to Walters, if 2257 is unconstitutional it doesn’t matter if the statutes and regulations have been in effect for years.

“An unconstitutional statue can sit around for 50 years, and if someone decides to challenge it on the 50th year, if it’s unconstitutional it must be struck down,” said Walters.

Opposition to 2257 has also extended beyond the boundaries of the adult entertainment industry.

“While sitting in church, people think it’s fine to say ‘I abhor porn,’ but most men still look at it. It makes a nice safe political platform. If a politician stands up and says, ‘Let’s stop pornography,” not too many people will argue with him,” read a feature from J.W. Smythe on Free Internet Press. “I’m arguing right now. Leave my pornography alone. If I want to watch consenting adults having intercourse, that’s my own business. It doesn’t matter if I see it in a magazine, on Cinemax late at night, or on the Internet.”

“It’s so inclusive that it’s really absurd,” said Annalee Newitz, policy analyst with the Electronic Frontier Foundation, a privacy advocate group that has supported the FSC in its fight.

“Unilaterally changing interpretation of the law to require that every website owner check and record IDs from all those who appear in explicit images is an outrageous attempt by a repressive administration to effectively halt the publication and exchange of many images of adults — including those of lesbian, gay, bisexual and transgender persons — engaged in consensual explicit activity,” said Will Doherty, Executive Director of the Online Policy Group in San Francisco.

Even a Forbes magazine editorialist unsympathetic to the adult industry called 2257’s record-keeping requirements a “near-impossible task.”

According to Obenberger, the “case is far from over,” and there are “many happy days and sad days” ahead.

“I rest secure in the knowledge that my friend Paul and my friend Lou are eminently capable … smart, tough and determined,” added Obenberger. “The ability to win [depends] on the support they get from the adult industry … it will take [additional] people who are willing to come forth and testify.”

For information on joining the FSC or supporting its 2257 legal fight, please visit the FSC website at www.freespeechcoalition.com. FSC representatives have urged people to be patient but persistent when trying to contact the FSC or fax membership forms to FSC offices, as a current high call volume has resulted in tied up lines and busy resources.