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Free Speech Comments on 2257

CHATSWORTH, Calif. — In response to Attorney General John Ashcroft’s announcement in June that the U.S.C. Title 18, Section 2257 adult material record-keeping and labeling law is being expanded to include the Internet, Free Speech Coalition has submitted comments to express our concerns about the new regulations and their application to this new medium.

Drafted primarily by Board of Directors’ member and First Amendment attorney Reed Lee, with assistance from Board Chairman Jeffrey J. Douglas, the 23-page document outlines in detail the constitutional infirmities and practical difficulties in the proposed regulations. Beginning with the impropriety and unfairness of a retroactive effective date for the proposed rules, Lee outlines seven main points in making the argument that these new policies are unjustly burdensome on protected expression and on members of FSC who produce it. One of the key issues as these regulations apply to the Internet is the definition of a “producer” of content and the requirement that “secondary producers” also keep original records.

As Lee points out, those who are not a primary producer should not be required to keep extensive records, particularly since this issue of secondary producers has already been litigated in Sundance Associates, Inc. Reno, and was decided contrary to these rules. On a constitutional note, Lee says, “the volume and complexity of those records will very likely chill the willingness of many to republish material, thus limiting the reach of constitutionally protected expression.”

The record-keeping requirements themselves are described by Lee as “unclear and too burdensome.” At the very least, he points out, records should be allowed in digital form as the massive paperwork anticipated by the regulations would overwhelm many smaller companies’ ability to comply. As drafted, the rules are less than clear on this point and also require that records be kept for an inordinate amount of time.

Reflecting the concerns of smaller, individual Website owners, Lee also makes the important point that requiring the name and physical address of the custodian of records to be disclosed is a threat to privacy, and exposes producers to identity theft and stalkers. Concerns about the propriety of inspections of records at the times and intervals specified in the new rules are also articulated and recommendations are included which would protect individual rights and clarify the intent of the requirements.

As the trade association of the adult entertainment industry, representing all the diverse creators and distributors of adult products and services, Free Speech Coalition continues to serve as the voice of this industry in fighting against regulations that unfairly target our industry. Our timely and cogent comments to the Justice Department in this matter are another example of that important work. A copy of the Comments is available from Free Speech Coalition.

 

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