DENVER, CO – On December 22nd, six days before Judge Walker D. Miller issued an order granting in part the Free Speech Coalition’s motion for preliminary injunction in Free Speech Coalition v. Gonzales, attorneys for the US Department of Justice filed an amended motion to dismiss or in the alternative for summary judgment in the case. Earlier this week, the FSC filed its response.Among other arguments contained in their December motion, DOJ attorneys assert that 18 U.S.C. § 2257 and 28 C.F.R Part 75 (more commonly referred to as “2257 regulations”) do not violate the First Amendment, that the FSC’s overbreadth and vagueness claims are “meritless,” and that the FSC has no standing to make a privacy-based challenge to the regulations.

The FSC response draws immediate attention to the fact that in the interim since the government submitted its motion, Judge Miller has drawn a different conclusion about the merits of at least some of the FSC’s claims.

“In light of the Court’s subsequent order, much of the Government’s motion is simply not operative,” the FSC states in its response. “Indeed, implicit in the Court’s ruling on the merits of the motion for preliminary injunction is that Plaintiffs have, in fact, stated valid claims for relief in the Amended Complaint.”

Addressing the government’s position that the regulations do not violate the First Amendment, the FSC asserts that “The Government is seeking to do indirectly what it may not do directly,” and cites another FSC-litigated case, Ashcroft v. Free Speech Coalition in which the court held that “The Government may not suppress lawful speech as the means to suppress unlawful speech.”

To support the conclusion that 2257 regulations do serve to suppress lawful speech, the FSC argues that “§ 2257 imposes significant conditions prior to the utterance of protected expression. In the absence of compliance with these record keeping conditions precedent to expression, protected expression is conclusively prohibited.”

In its response, the FSC also notes that the regulations apply to a great deal of content that one can’t even reasonably argue has anything to do with the stated purpose of the regulations – to prevent the production and contain the distribution of child pornography.

“(T)he challenged provisions reach a vast amount of protected speech that not even arguably involve children and which are outside the Government’s interest in controlling child pornography,” the FSC argues, pointing out that “the absence of such records, protected expression is conclusively criminalized even where there is no question that the participants in the expression are well over the age of majority.”

In summary, the FSC simply contends that whatever points of contention the government may raise with the First Amendment arguments the plaintiffs have made, the FSC has “stated a claim that the challenged provisions violate the First Amendment and should be afforded an opportunity to present evidence in support of their claims recognized as serious by this Court.”

One particular challenge raised by the FSC would appear to be on very solid ground; the contention that the controversial “secondary producer” provisions within the recently-revised 2257 regulations are invalid.

“In its order, the Court determined that it was bound by the Tenth Circuit decision in Sundance Associates v. Reno,” the FSC response notes, “and enjoined the enforcement of the statute and regulations with regard to ‘secondary producers.’ As such, the motion to dismiss should be denied.”

At times, the FSC’s response takes on a bemused, almost mocking tone, and not without cause. Among the claims that the DOJ finds to be “meritless” is the claim that, as it is used in the language of the regulations, the phrase “assisting another to engage in” actual sexually explicit conduct is vague.

“The challenged ‘assisting another to engage in’ provision is the epitome of a law that is
void-for-vagueness,” The FSC asserts in their response. “It is so barren of notice concerning what it proscribes that even the Government cannot clearly state what it means… The regulation forces individuals of common intelligence to guess at the meaning of the law and is consequently unconstitutionally vague.”

With respect to the government’s assertion that the FSC lacks standing to make a privacy challenge to the regulations, the FSC counters that impact the privacy rights of its members, and the FSC “therefore has associational standing to assert the rights of its members here.”

Noting that its members include performers and producers of sexually explicit content who “retain their right of privacy guaranteed by the Constitution,” the FSC argues that the regulations impose “a direct hardship on that right by requiring performers to disclose highly personal information, including date of birth and residential address, as a condition precedent to participating in the creation of adult material.”

Echoing the concern expressed by many in the adult internet sector, the FSC response adds that the “harm of this disclosure is magnified by the fact that the Attorney General’s regulations then implicitly mandate that primary producers provide this information to secondary producers with which the performer has had no contact.”