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Joe Grat, over at his legal and intellectual property-oriented blog, writes about a setback for the Justice Department in its enforcement of the 2257 regulations, a set of record-keeping requirements designed, many feel, to severely hamper and restrict the adult entertainment industry on the internet. As few have pointed out, however, these regulations also regulate content by all manner of film producers, including independents, and, as I’ve been blogging throughout the last few months, the ramifications of these rules needs to be debated in the indie community.

For now, the fight over 2257 is being waged by the adult industry’s Free Speech Coalition, and as Gratz notes, the government received a setback just before the New Year:

“United States District Judge Walker D. Miller of the District of Colorado filed an order Wednesday enjoining the enforcement of certain reporting requirements recently imposed on distributors of pornography while the plaintiffs’ case against the justice department proceeds….

“The Free Speech Coalition, an association of pornographers and disseminators of pornography, sued to enjoin enforcement of section 2257 on three grounds. First, they argued that the Justice Department regulations covered a wider range of activities than the statute allows — in legal terms, that the regulation was ultra vires. Second, they argued that the statute as a whole violates their First Amendment rights. Third, they argued that the statute violates their constitutional right of privacy…

“The judge ruled in favor of the Free Speech Coalition on the ultra vires issue, finding that the statute did not give the Justice Department the power to regulate anyone who does not participate in “hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted.” This finding was not surprising, given that the Tenth Circuit Court of Appeals (whose jurisdiction includes the District of Colorado) has ruled that a previous version of the regulation containing an identical exception was ultra vires. See Sundance Assoc., Inc. v. Reno, 139 F.3d 804, 805 (10th Cir. 1998). The court enjoined the Attorney General from enforcing the regulation against those plaintiffs whose business “does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performer…

“While this is only a preliminary injunction, it indicates Free Speech Coalition’s likelihood of ultimate success in this lawsuit. The chilling effects on lawful, protected speech we’ve seen as a result of the Justice Department’s overbroad regulations should dissipate if the plaintiffs ultimately succeed.”

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