Page 60 - AVN January 2013

Business Sense_01.13 12/24/12 2:50 PM Page 60
LEGAL TRENDS | By Mark Kernes
the claims because of legal doctrines known
The Lowdown on 2257
Judge denies government motion in FSC suit, but funds are crucial for success
“The government’s motion to dismiss was to dismiss the Fourth Amendment claims on the
ground that the court shouldn’t accept jurisdiction over as ‘standing’ and ‘ripeness’,” Murray explained. “Essentially, the government’s argument was, they
submitted an affidavit of an FBI agent, a guy by the name of Novotny, who had been the superviso-
ry agent over the 29 searches that had occurred in 2006 and 2007—he was the guy that actually set
up the program. So they submitted this affidavit indicating that these inspections had occurred in
’06 and ’07, a total of 29 of them, and also that when I initially got the ruling in Connection
Distribution striking the law down before the en banc court took that away from us—as a result of
that decision, they suspended the inspections, and that even after the Connection case was resolved
against us by the Sixth Circuit sitting en banc, they did not resume the program and they haven’t
a moment’s notice,” Murray warned.
done any inspections for the past five years.”
“But make no mistake: They could restart this program at “They could do it today, they could do it tomorrow—and they don’t even dispute that!”
“And so, the government was taking the position that there’s no imminent threat of inspections
occurring, that we don’t know what kind of inspections they would do if they ever reinitiate the
program, and therefore, the case doesn’t present a case or controversy, and we don’t have standing to
challenge the statute of Fourth Amendment grounds,” Murray summarized.
“We of course responded in a pretty good brief, explaining how that would ask the judge to defy
what the Third Circuit had done, because the Third Circuit had specifically overturned the dis-
missal of the Fourth Amendment claim as well as the First Amendment claim, and had remanded it
Argument on the U.S. Department of Justice’s motion to dismiss the lawsuit
in Free Speech Coalition, et al v. Holder was set for 1:30 p.m. on November 26
in the Philadelphia courtroom of U.S. District Judge Michael Baylson, but
precisely so that we can get discovery of the searches that they did do,” Murray continued.
When asked by the judge to respond to Murray’s arguments, the attorneys for the Justice
eases
TECH NEWS
less than an hour later it was over, with Judge Baylson denying the
government
’s motion from the bench.
With the dismissal of that motion, the judge allowed discovery in the case
to go forward. This will involve taking depositions of both the various
plaintiffs as well as attorneys and others in the Justice Department who might
have knowledge of the facts and issues involved, and who might have
possession of documents relating to the government’s handling of the case.
The hearing was the first official action taken by Judge Baylson since his
ruling in 2010 dismissing the case on the original pleadings—a dismissal that
was overturned by a three-judge panel of the Third Circuit Court of Appeals
on April 16.
“We are thrilled with this decision and want to applaud the great work of
[legal counsel] Michael Murray and Lorraine Baumgardner,” commented Free
Speech Coalition CEO Diane Duke. “The industry’s battle with 2257 has
been around for a while and many have become complacent about its impor-
tance. The victories we have seen with this litigation are critical to the securi-
ty of just about everyone in the industry, from retailers to VOD companies
and of course, producers.
“We are at a very important juncture with the litigation and we need
support from the industry to continue in the fight,” Duke warned. “We need
everyone’s support to win this. Please, as you consider your end-of-year con-
tributions, consider contributing to the important cause and write a check to
FSC targeted toward 2257 litigation. Every cent contributed to this cause will
go to the litigation. The time to act is now and please give generously.”
The day after the hearing, First Amendment attorney Murray, counsel for
the plaintiffs in the lawsuit, and who’s been involved in fighting §2257 for
almost 20 years, spoke to AVN and gave some details of the argument and
decision.
The Fourth Amendment, as too many adult industry veterans have good
reason to know, affirms “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.”
§2257 turns that amendment squarely on its head by authorizing a designee
of the attorney general (in 2006-7, it was the FBI) to inspect §2257 records
without the required warrant and affidavit of probable cause simply because
that designee has seen younger-looking adults performing in that company’s
movies.
Department were unable to argue that the FBI would not engage in further §2257 inspections, even
if it were unlikely that it would do so as long as the FSC lawsuit is still in process, nor could they
produce any case law that supported their motion.
“So the judge said he’s going to order them to give us discovery; that unless they can come up
with some kind of a privilege, he’s going to let us examine the FBI reports of the 29 searches, and
he’s going to let us take deposition of at least some of the FBI agents to flesh out exactly what hap-
pened during those searches that would support our Fourth Amendment claims,” Murray reported.
Murray pointed out that discovery on the First Amendment issues has been ongoing for some
time, with various of the plaintiffs answering affidavits propounded by the DOJ—while for the
most part, the DOJ has objected to providing similar material to the plaintiffs. When he spoke to
AVN, the judge had scheduled a telephone conference on December 13 to resolve the disputes,
indicating, Murray said, that “he’s going to stay very much on top of the discovery in this case to
make sure that it gets done.”
That’s a hopeful sign to those who have been following the case, and who are aware that Judge
Baylson is a Bush appointee who, at the beginning of the case, seemed ready to give it short shrift,
but who now, in the wake of last spring’s Third Circuit opinion, appears to be taking the case more
seriously.
But all the good decisions in the world won’t make a difference if the adult industry doesn’t put
its money where its mouth is in terms of funding the lawsuit.
“These burdens aren’t going away,” Murray warned. “People shouldn’t be lulled into a false sense
of security, because the government could restart its inspection program at the drop of a hat, and if
adult content producers are not keeping their records properly, sooner or later, somebody’s going to
get nailed.”
There’s already been speculation in the adult legal community that if the FBI reports of the 29
companies that were inspected ever come to light, the industry will be shocked at how out-of-com-
pliance most if not all of those companies were found to be—and in many cases, still are, even
though there’s no doubt that everyone performing in their movies and online content are adults.
But if the funding for this lawsuit dries up, such information may never come to light—and pro-
ducers will be right back where they were in 2007: worried that their §2257 records are incomplete
or somehow otherwise inadequate, and dreading that knock on the door that says their offices and
warehouses are about to be invaded by government agents whose reports to the Justice Department
may cause those producers to have to defend technical violations of this unconstitutional law that
could land them in federal prison for five years or more.
“The industry needs to seriously start funding this,” Murray stated—and producers who fail to
take this to heart will have only themselves to blame.
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