The Next Round on 2257 - As Expected, No Joy

I picked up this useful piece of analysis written by my friend Mark Kearnes at AVN to update readers on the status of this situation, and to make a point once again that I feel needs making. First, Kearnes:

Countdown To The New 2257 Regs?

By Mark Kernes
WASHINGTON, D.C. - According to the U.S. Department of Justice's "Semiannual Regulatory Agenda," published last Monday in the Federal Register, the revised regulations under 18 U.S.C. §2257 will be released this month. However, the date listed in the Federal Register for "Final Action" is "12/00/08" - which according to attorney and AVN columnist Clyde DeWitt means that the exact date of the release is uncertain.

"In order for the regulations to be sanctified before Jan. 20, I think they have to be issued by 30 days before that, so it would have to be Dec. 20 or 21," DeWitt said. "But I'm not sure how that works. It's a deadline to the extent that if they don't meet it, the Obama administration can undo what they did. But it should be within the next three weeks, for sure. Bush is doing everything he can to push things like this through before he leaves office."

"We've already received several calls from interested parties inquiring about this subject, and we're looking into finding the answer to that question right now, but we don't currently have that information," a spokesperson for the Justice Department's Child Exploitation and Obscenity Unit told AVN.

According to the Washington Post, though, the final regulations have been ready for nearly two weeks.

"Another Justice rule approved Nov. 19 spells out the personal documentation that sexually explicit performers and related publishers must make available for government inspection," Post staff writers R. Jeffrey Smith and Juliet Eilperin reported. "The underlying 2005 law, intended to keep minors out of such performances, has been challenged in the courts as a privacy violation by sexual swingers and the magazines in which they use explicit photos to solicit partners."

In fact, the regulations have technically been in force since 1996, based on a law enacted in 1988, though revised regs were first proposed under then-Attorney General John Ashcroft and finalized in 2005 under his successor, Alberto Gonzales. The most recent revisions were proposed in June, 2007, with a comment period ending Sept. 10, 2007 - and in-between, Free Speech Coalition filed a lawsuit seeking to overturn them, though that lawsuit is currently on hold pending the regs' final revision.

The court challenge referred to in the Post is the Connection Distributing case, filed by First Amendment attorney J. Michael Murray in 1995, which resulted in a panel of the Sixth Circuit U.S. Court of Appeals, on Oct. 23, 2007, overturning the entire 2257 regulatory apparatus. However, that appeal was later the subject of an en banc rehearing by the Circuit in September of this year, and that hearing has not yet resulted in a decision.

Noteworthy is the fact that the DOJ's Agenda indicates that an "analysis" under the Regulatory Flexibility Act is required, but while several witnesses testified through deposition in Free Speech Coalition's lawsuit that the then-existing regulations would require the expenditure of millions of dollars by adult businesses to be in compliance, and require terabytes of storage space to maintain the required records, the adult industry is not aware of any further "analysis" by the Justice Department.

The Free Speech Coalition, in commenting on the 2007 proposed regs, included a study done by a D.C.-area regulatory analyst, which indicated that the proposed regs would have a disastrous economic effect on the industry. Therefore, the Justice Department's claim accompanying the 2005 regs, that, "Based upon the preliminary information available to the Department through past investigations and enforcement actions involving the affected industry, the Department is unable to state with certainty that this rule, if promulgated as a final rule, will not have any effect on small businesses of the type described in 5 U.S.C. Sec. 601(3)," could not credibly be able to be applied to the 2008 revision.

But the question remains, will the regulations actually be released any time soon?

"Keep in mind that we have seen those predictions before, and they have turned out to be not deadline," said First Amendment attorney Reed Lee. "The Semiannual Regulatory Agenda has, all along since the Adam Walsh Act at least, said, 'We're gonna get regs out by such-and-such.' Those '00' dates have been blown in the past. I've said all along that I think this administration is going to try to get regulations out before it leaves office, but one would have thought that they would have tried to get them out by [Nov.] 21st in order not to be within that 60-day deadline period so the regs don't begin to take effect after Bush has left office. Whether they want to try to rush something out on the theory that a new administration wouldn't dare reverse it, I don't know."

Lee said he doubted if the new regs would encompass substantial changes from the 2005 regs, although they would incorporate the new Web-based requirements set forth in the Adam Walsh Act.

"They [the new regs] can't be too outrageous or it will hurt them in the Sixth Circuit and it will hurt them in Denver," Lee opined, referring to the Connection and Free Speech lawsuits. "I think there are people in the Justice Department now who would just as soon let these regs languish until the next administration, and there are also hardliners who want to do everything they can to get at the pornographers and they believe this is their last chance. I can't tell who has the upper hand."

Ron London, a D.C.-based attorney who also deals extensively with the adult industry, had similar doubts.

"What you're having is a change of administration," London said, "and the only thing we've really seen here is the Semiannual Regulatory Agenda, which gives an unspecified date, and at relatively the same time frame, the Office of Management and Budget [OMB], which has to sign off on any new paperwork or recordkeeping obligations adopted by a federal agency, gave its approval to the 2257 rules, which is part of the process of adopting rules. Now, 2257 or 2257A or both have been in the Semiannual Agenda of the DOJ every issuance since the Adam Walsh Act in 2006, sometimes with a specific month attached to them, sometimes with a range of months if I remember correctly, but they've appeared fairly regularly. So it's hard to say, against the backdrop of the waning administration - it may be that they're rushing to get this out before the first of the year, since they don't know if the new administration will have the same impetus to keep this going as they did up until now, or whether it's just a matter of churning, keeping the trains running on time, and it will come out when it comes out, and their best guess is December, but they really don't know when it will come out. It's really kind of hard to read these tea leaves."

"My gut feeling is that there are still some true believers over at CEOS [Child Exploitation and Obscenity Section] who have a last chance at steering these things," he continued, "and they know that if the regulations get adopted, in order for them to get changed or rescinded, they have to go through full-blown notice and comment rule-making."

According to London, an opinion by the Sixth Circuit, en banc, regarding Connection Distributing could change the entire playing field.

"If that decision were to come out before the rules were to come out, and the en banc ruling went the same way as the panel ruling, then whether the rules come out or not, what you've basically got is rules adopted pursuant to a federal statute that's been held to be unconstitutional, so the rules would be void," London said. "Now, that being said, the first thing the government would do is ask for a stay of the court's mandate, so the rules could remain in effect until they have a chance to petition the Supreme Court for review, and that would take however long it's going to take, and conceivably the rules would remain in place."

But if the Sixth Circuit does strike down the statute, London is fairly sure that the Obama Justice Department would appeal the ruling.

"In this case, since this is a statute to make sure that underage people don't get used in dirty, filthy adult films, it's really hard to say, 'Ah, we're not interested in getting that statute put back on the books,' at least as a political proposition," he said.

Now for my turn. Let's look at those last two graphs again:

"But if the Sixth Circuit does strike down the statute, London is fairly sure that the Obama Justice Department would appeal the ruling.

"In this case, since this is a statute to make sure that underage people don't get used in dirty, filthy adult films, it's really hard to say, 'Ah, we're not interested in getting that statute put back on the books,' at least as a political proposition," he said."

Remember what I said about Eric Holder last week? Do you picture him dropping the proceedings and letting 2257 quietly revert to the already unconstitutional and burdensome form in which it existed prior to its "restructuring" under Bush? I can envision snow in July in L.A. more easily.

While I do believe that some of the more preposterous and technologically impossible elements of the regulations may eventually be negotiated away in some kind of settlement, I have absolutely no reason to expect any slack being cut for us overall by Holder or anyone else in Obama's crowd.

We need to face the fact that we have no friends in those circles and plenty of enemies.

Don't want to believe it? Wait until you read my next post.

Meantime, get your helmet on because no armistice has been declared in the war on porn and sex work in general, nor will it be. The fire will simply be coming from a new direction, and I already see evidence that the fresh reinforcements over there might be better shots.