Delivering Weekly Censorship Updates to the Adult Entertainment Industry
Vol. X, No. 17, May 4, 2007 - A Member Service of the Free Speech Coalition Free Speech X-press is researched and edited by Scott Ross.
Copyright 2007 Free Speech Coalition. Permission to reprint granted to FSC members; please give credit.
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2257: Judge Miller's Status Conference
DENVER, CO - Based on an April 25 status conference in the case Free Speech Coalition v. Gonzales, the Free Speech Coalition expects U.S. District Court Judge Walker D. Miller to dissolve portions of the preliminary injunction (in place since December 2005) that ordered the Government not to inspect secondary producers. FSC hastened to add that this does not mean inspections of secondary producers are likely in the foreseeable future.
According to the team of attorneys representing the FSC, "We have no reason to anticipate imminent inspections of secondary producers. The reasoning underlying Judge Miller's preliminary injunction remains valid: That is, prior to July 27, 2006, there was no statutory authority for record-keeping by secondary producers. We are awaiting regulations which will announce the Department of Justice's position on what secondary producers' responsibilities are under the July 27, 2006, amendments [to the regulations associated with 18 USC - 2257]."
Added FSC Chairman and First Amendment attorney Jeffrey J. Douglas, "We are all confident that no court would allow a retroactive obligation to be placed upon secondary producers for which there was no lawful authority when they acquired the images. Furthermore, until the new regulations are finalized, how can any secondary producer know what their obligations are? For instance, they cannot comply with the regulations applicable to primary producers. Actual inspection of the original ID is impossible for a secondary producer."
The status conference was requested by FSC attorneys in cooperation with government litigators after a March 30 ruling that dismissed some causes of action and allowed others to proceed in light of the Adam Walsh Act amendments to 18 USC ยง2257. The Walsh Act amendments became effective July 27, 2006, but regulations for enforcing the act have not been finalized.
Should there be any indication the government plans to claim such authority, the Free Speech Coalition promises to seek another court order immediately.
The FSC will provide regular updates on the status of 2257 as the case unfolds through its weekly XPress newsletter, e-mail alerts, and postings on its website. Answers to Frequently Asked Questions appear below in this issue of the X-Press and will be posted to the FSC website. FSC members are encouraged to contact FSC directly at 1-866-FSC-9373 if the answers to their questions do not appear in the FAQs.
http://avn.com/index_cache.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=287900
Frequently Asked Questions
1. As a secondary producer, what records should I have in place to be in compliance as a result of this decision and from what point in time do I need them?
Secondary producers were required by Congress to have records (photocopy of passport, DMV-issued ID, military ID or "Green Card" as well as personal information form) for materials acquired after July 27, 2007. The regulations detailing how compliance is to occur were supposed to be issued in January of 2007. They are now scheduled for release in June. Nothing legally has changed in regards to the basis by which FSC got its injunction; that is, Congress had not authorized any record-keeping by secondary producers prior to July 27, 2007. Therefore secondary producers need not acquire or maintain any records for materials acquired prior to July 27, 2007, at the earliest. It is more realistic to say that records will not be required until the effective date of the new regulations. If the Government is so stupid as to try to enforce record-keeping by secondary producers for materials acquired before Congress authorized such record-keeping, FSC will seek and expects to get an immediate order halting such action.
2. When do you anticipate is the soonest the new regulations concerning 2257 will be released?
The Government recently stated that the proposed regulations will be released in June of 2007.
3. What happens once the new regulations are released?
With a 60 day public comment period, assuming that the proposed regulations are released June 1, 2007, the Government has unlimited time to reflect on the public comments before issuing the final regulations. Assuming a conservative 60 day period after public comments to issue the final regulations (60 days would be lightning speed), the 2257A regulations, by statute, would go into effect 90 days thereafter. It is reasonable to assume that the same will apply to the 2257 regulations. Therefore the soonest they could go into effect would be seven months from June 1, 2007. So it looks like 2008 is when we shall see final regulations become effective.
4. Is FSC going to file for another injunction? What are FSC's next steps?
FSC will seek a court order preventing the new regulations from going into effect, assuming that the government does not completely relent from the burdensome compliance regime it has heretofore insisted upon. Additionally, because of the newly enacted "Hollywood" exemptions to 2257 and 2257A, there is a much stronger argument for declaring the entire 2257/2257A record-keeping and labeling scheme unconstitutional. This is a realistic hope.
5. If secondary producers are no longer covered, from a legal standpoint, why should I continue being a member of FSC?
Should the government attempt to enforce the record-keeping provisions against secondary producers for materials acquired before the effective date of the new regulations, your existing/ongoing membership will protect you when the new injunction issues. And assuming that FSC gets injunctive relief from the law itself and/or new regulations, you will definitely need to be a member then. But membership in FSC conveys many benefits, of which protection from government misconduct is only one of them. The fact that you are making this inquiry of us demonstrates the vital role we play in informing our membership of the pressing issues. Through your support of FSC, the adult industry has a lobbyist in Washington, D.C., has a respected voice in the wide-ranging public debate about the place of sexual communication in our culture, as well as commercial/financial benefits (see our website).
6. If FSC proceeds with a new lawsuit/injunction at what point will I need to be a member to be covered under the new lawsuit/injunction?
We cannot say at this time. We always try to have any legal relief cover as many people and businesses as possible. The significance of specific effective dates of membership depends on the judge and any agreements reached with the government in any given lawsuit. For instance the join date of May 23, 2005, in the Denver litigation was simply an arbitrary date imposed by the Justice Department. As to the next time, we must wait and see. If you maintain your membership, you need not be concerned about the effective join date in the future.
N.Y. Court Changes Definition of 'Depict' to Include Text
ALBANY, N.Y. - Last week the New York State Court of Appeals decided that sexually charged words alone are enough to convict a Manhattan lawyer under the state's anti-pedophile law, rejecting an argument that the word "depict," when used in regards to sending material depicting obscenity to minors, is limited to images.
The 5-2 decision overturned a lower state appeals court ruling that had thrown out the 2005 conviction of Jeffrey Kozlow on five counts of attempted dissemination of indecent material to minors. Kozlow, who had e-mailed messages of a sexual nature to an undercover officer posing as a 14-year-old boy, was sentenced to five year's probation on that conviction.
In his appeal, he argued that the 1996 state law used against him required the charges against him be thrown out because the statute said the material sent had to "depict" sexual conduct. The law was intended to crack down on pedophiles using computers to lure minors into sexual encounters.
The court determined that someone can be charged with disseminating material harmful to minors over the Internet even when the material contains only text. This went against a 2004 ruling by a lower N.Y. court, in which charges were dismissed after the emails in question were found to be without images and therefore, by then-definition, did not depict offensive acts.
Writing for the court's majority, Judge Eugene Pigott Jr. said, "The Legislature [in 2004] was surely aware that a sexually explicit text may be used as a means of seduction just as effectively as a sexual image. They could not have thought that this process was limited to the transmission of pornographic images. Indeed, the logic of communication dictates just the opposite - that images alone would not enable the sender to entice a minor to a meeting."
http://www.newsday.com/news/local/wire/newyork/ny-bc-ny--court-pedophiles0426apr26,0,983222.story?coll=ny-region-apnewyork
Fred Salaff Trial Scheduled; Verdict Expected Soon
JOYITO, Panama - American adult film producer Fred Salaff, who's been awaiting his case to be heard for more than two years, can expect a verdict within the week. Salaff has been under house arrest, barred from seeking employment since his arrest more than two years ago. His trial dates having been repeatedly postponed until now.
Salaff was arrested after police raided his Devils Film shoot and charged him with pressuring prostitutes to perform and failing to file paperwork necessary to legally film an adult movie in the area, as well as neglecting to prevent minors from viewing the on-set activity. Several children reportedly climbed a wall to peek into Salaff's set during the shoot.
According to an XBIZ report, Salaff announced last week on his Web site that he had finally met with a judge that morning, during which he agreed to a "fast track" trial, waiving his right to a preliminary trial to "go for the real thing."
During the trial, both the defense and prosecution presented their arguments after the judge read the charges to the court, and Salaff said court observers have told him that "there should be no doubt as to the verdict."
Observers told him this judge is known for making quick judgments for guilty verdicts, but for this case has asked for "a short time" to make her final decision, rather than convicting him that same day. Salaff said he sees this as a good sign.
The law states the judge has at most 24 hours to decide, but Salaff said it could end up taking a week or longer.
http://xbiz.com/news_piece.php?id=22777
Ohio Curfew Bill Leads to New Political Websites
DAYTON, OH - Ohio's adult industry curfew law has led to the creation of two new sites for citizens to voice their concerns to their elected representatives, StopTheHouse.com and StopTheSenate.com.
Ohio's Senate bill 16, The Community Values Act, would set strict midnight curfews for adult bookstores and other businesses. The bill passed the Ohio State senate by a 24-8 vote April 18, but if it is not passed in the state House by May 2, it will have to be re-submitted.
"The main motivation to get this site started was what's going on here in Ohio with Senate bill 16," Matthew Riley, webmaster for StopTheHouse and StopTheSenate, told XBIZ. Riley is also IT manager for the Dayton-based In Your Face Agency, which operates adult cabarets and websites. "We own several adult businesses, and this obviously hits home. We thought this would be a great tool, which we had sitting in our back pocket, practically ready to go."
The StopTheHouse website was announced by a 60,000 mass e-mailing Thursday night. "We sent to every e-mail address we had access to," Riley said. "We've already sent 450,000 emails to the state House, because every time somebody hits 'Send' it goes to all 100 members."
The bill was presented through Ohio's initiated-statute petition process. Citizens for Community Values, a conservative, Cincinnati-based group, led the petition drive.
At present, the sites only offer links for Ohioans to protest the curfew law to Ohio state legislators, but plans call for the site to connect citizens to legislators in all 50 states. In addition, a third Web site, StopTheWhiteHouse.com will be introduced along with other advocacy sites in the future.
For more information, visit StopTheHouse.com and StopTheSenate.com
http://xbiz.com/news_piece.php?id=22739
California Legislature Straps Taxpayers with Billions in Debt While Stating Opposition for Tax Hikes, Yet Targets Adult Entertainment With Proposed Tax
By Matt GrayThe legislative landscape is marked with deals and deadlines, rule waivers and workarounds. There is very little which cannot be accomplished if lawmakers decide they want to do it.
April 27th was one such deadline for policy committees to have heard and moved any legislation which was designated as a "fiscal" bill. A fiscal bill generally means it would exceed more than a certain cost to taxpayers if made into a law, and therefore must be heard by one of the fiscal committees.
Late nights and skipped lunches was the standard modus operandi for many a lawmaker, staff, and lobbyist as they struggled to pass (or kill) legislation dealing with anything from healthcare reform to California's impending prison crisis.
A great example of deal making and workarounds can be found in one of the most far reaching and costly measures to pass through the California Legislature in the last decade, Assembly Bill 900. AB 900, by Assemblyman Solorio (D-Santa Ana), was a transportation bill that was completely gutted and amended into a prison bill on April 25th.
Before it was even in its official published format the measure was set and heard by both the Assembly and Senate on the morning of April 26th. By not having the bill "in print," not allowing it to remain in print for 30 days, and now hearing the bill (ever) in either a policy or fiscal committee, the Legislature would appear to have violated a number of constitutional and legislative rules.
But every rule has a loophole built in, and all the lawmakers have to do is vote to waive the rules and move on. So one might appropriately ask, what is the point of having the rules?
On our behalf our elected officials, within less than 24 hours, proceeded to gut and amend a non-germane bill, skip all committee hearings and opportunity for public consideration, and ram legislation through that indebts California to more than $6.1 billion in revenue bonds to build the largest prison system in the world. Add to this the fact that "revenue bonds" are supposed to possess some revenue generating mechanism to pay for the cost of the bonds, and prisons are clearly without any revenue generation, and our elected officials circumvented the voter approval process because voters already made it clear that they disapproved of the Governor's special election infrastructure bond initiatives.
Lawmakers overwhelmingly passed a $6.1 billion prison construction plan on the backs of California taxpayers.
Meanwhile, Assemblyman Chuck Calderon is still promoting AB 1551 to tax the adult entertainment industry because, he claims, California is short on tax revenues. AB 1551, as a non-fiscal bill, has still not been set for its first hearing in the Assembly Committee on Revenue and Taxation but is expected to be heard on either May 14th or 21st.
Apparently logic and reason need not apply when crafting (and passing), legislation.
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Matt Gray is a senior lobbyist for Capital Alliance, a Sacramento based lobbying and government strategies firm. He can be reached at 916-444-5551, or by e-mail: matt@thecapitalalliance.com
Email Xpress@freespeechcoalition.com for more information.
Because of 2257 litigation, it's critical that we have your company's information complete in our database. Are you SURE your company's information is complete? Email UpdateInfo@FreeSpeechCoalition.com to update your company's information now.
NOTE: The data we're tracking, related to 2257, has changed. Please update NOW.
MAY 11-13 - Sex and So Much More Show, Phoenix
MAY 26 - Arizona Fetish Ball, Scottsdale, AZ
JUNE 7-10 - Cybernet Expo, Tampa Bay, Florida
JUNE 22-24 - Erotica L.A., Los Angeles Convention Center
AUGUST 27-30 - Annual Gentlemen's Club Owners Expo, Las Vegas, NV
AUGUST 27-30 - STOREROTICA Convention and Tradeshow, Las Vegas, NV
SEPT 21-23 - ADULTCON, Los Angeles Convention Center
Peace is not only better than war, but infinitely more arduous.
-- George Bernard Shaw
The happiest man is he who learns from nature the lesson of worship.
-- Ralph Waldo Emerson
