Vol. VIII, No. 7, Dec 30, 2005 — A Member Service of the Free Speech Coalition
RULING IN FSC 2257 CHALLENGE
Free Speech X-press is researched and edited by Kat Sunlove and Layne Winklebleck.
Copyright 2004 Free Speech Coalition. Permission to reprint granted to FSC members; please give credit.
VISIT OUR WEBSITE FOR FSC MEMBERSHIP INFORMATION
There will be no X-Press Censorship Updates newsletter published next week as Kat and Layne will be in Las Vegas for the AVN Adult Entertainment Expo and Internext. HAPPY NEW YEAR!
DENVER, CO — United States District Court Judge Walker D. Miller has granted a preliminary injunction against enforcement of certain key provisions of U.S.C. 18 §2257 as regards FSC members. The ruling is currently being assessed by the FSC legal team and an analysis of the ruling will be made available as soon as possible on the FSC website. Initial readings of the ruling are heartening, especially for FSC members who fall in the category of so-called “secondary producers.” Until there are further legal proceedings, such as a trial or appeal process, or until there are further orders by Judge Miller, the government may not enforce §2257 against FSC members whose “activities do not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performer”; in other words, those who are not the primary producers of sexual materials. This is in line with the 1998 10th Circuit Sundance v. Reno decision which many secondary producers, such webmasters, have relied on — and properly so, according to Judge Miller — in deciding that secondary producers did not fall under §2257 record-keeping requirements.
In addition to the injunction against government prosecutions of secondary producers, FSC scored a crucial victory in convincing Judge Miller of the substantial likelihood that requiring producers to maintain URL’s for websites that are outside their control will be found to be overly burdensome. FSC attorneys also convinced Judge Miller of the substantial likelihood that the mind-boggling government insistence that chat rooms should have to store huge video recordings of chat room activities will be found overly burdensome. As a result, under this injunction, for now, the government may not enforce §2257 against members of FSC with regards to websites they do not control, or against FSC members as regards keeping video records in the operation of Internet chat rooms. Please note that the foregoing injunctions cite specific clauses of the revised §2257 and will need careful analysis by FSC attorneys to clarify the exact nature and full implications of the ruling.
FSC plans just such a timely clarification at the membership meeting in Las Vegas on Thursday, January 5, 2006, in Room 403 of the Sands Expo, Las Vegas, Nevada, adjacent to the Venetian Hotel and Casino. By then, FSC attorneys will have had time to analyze the ruling and will be in attendance to answer questions.
From an FSC press release, 12/28/05
And from Judge Miller’s decision, 12/28/05
FSC ACTION CENTERS AT AEE AND INTERNEXT
CHRIS WILSON RELEASED ON BAIL
LAKELAND, FL — The Florida Second District Court of Appeal has ordered that Chris Wilson be freed on bail while awaiting trial on obscenity charges for posting allegedly obscene photographs on a website that is hosted in Europe. As noted in earlier X-Press reports (See X-Press: “Update on Chris Wilson Legal Travesty,” 12/23/05) Wilson’s bail had been revoked by Circuit Court Judge J. Dale Durrance based on arguments by prosecutors that he had violated terms of bail by continuing to run his website.
Wilson’s attorneys, including Lawrence Walters and John Weston, have pulled out all stops to get Wilson released pending trial. In recent days, while awaiting their appeal to the Second District Court of Appeal — which was delayed for a week while giving Florida Attorney General Charlie Crist time to respond — they filed appeals with the Florida Supreme Court, which said it did not have jurisdiction, and with U.S. Supreme Court Justice Anthony Kennedy, the justice charged with handling emergency matters for the Eleventh Circuit. Kennedy refused to grant a stay on an emergency basis.
Wilson’s attorneys have not seen the details of the ruling by the Second District, which was ordered by telephone, so they don’t know the basis of the ruling. Weston has indicated that the basis of the ruling is important in order to avoid Wilson being again in jeopardy if the Polk County Sheriff decides in the future that he has committed the same offense.
From Mark Kernes, AVN Online,12/29/05
And from Diana Willhoit, The Lakeland Ledger, 12/26/05
BOUTIQUE CLOSES AFTER SIX-YEAR BATTLE
LITTLETON, CO — Christal’s, a boutique that was at the center of a significant high court First Amendment case, Littleton v. Z-J Gifts (2004), has closed. The store owners have agreed to a settlement in which they will pay a $50,000 fine and plead guilty to some charges. They had faced a total of over 1000 ordinance violation charges, each one carrying the potential of jail time and a $1,000 fine. A trial had been set for January.
The long running legal dispute, never resolved, but now moot, was whether Christal’s could open on land that was not zoned for adult businesses. Christal’s owners claimed that although their store carried some "sexy" material, it did not fit the criteria for an adult business. Littleton disagreed and refused to grant a business license.
In the case that went to the U.S. Supreme Court, Christal’s argued that the First Amendment requires that a city must afford a "prompt" judicial decision on adult business licensing applications, and that Littleton did not do so. The U.S. District Court in Denver ruled against the shop. But the 10th U.S. Circuit Court of Appeals sided with shop owners, saying that without prompt review the ordinance could be “a subterfuge for censorship.” (See X-press: “Oral Arguments in Adult License Case,” 3/26/04)
The high court ruled that courts must rule promptly on appeals filed by owners of the businesses. Merely allowing owners to file their appeals promptly is not enough to protect First Amendment interests.
That sounds good on the face of it. However, Justice Breyer, who wrote the decision, went on to say that Colorado’s regular procedures for handling civil lawsuits satisfied the requirement for prompt decisions.
“We have no reason to doubt the willingness of Colorado’s judges to exercise these powers wisely so as to avoid serious threats of delay-induced First Amendment harm,” Breyer wrote. If there is any undue delay, he suggested, “federal remedies would provide an additional safety valve.”
Now, as Christal’s finally closes its doors due to ordinance violations, we can’t help but wonder whether Crystal’s ever got the kind of prompt judicial decisions they needed, and whether a federal “safety valve” ever came into play to save Christal’s from “a subterfuge for censorship.” Just wondering.
From The Associated Press, 12/28/05
And from Rhett Pardon, Xbiz.com, 12/30/05
ANOTHER STATE CONSIDERS A “SIN TAX” ON ADULT
OLYMPIA, WA — State Representative Kirk Pearson (R-Monroe) has announced that he will introduce a 25 percent sales tax bill on adult entertainment items such as videos, books and magazines when the Legislature begins its session in January. The revenues would be used to treat sex offenders and help their victims.
"I believe there is a connection between hard-core pornography and deviant behavior of sex offenders," said Pearson.
PIRATED TAPES SEIZED FROM STREET VENDORS
MEXICO CITY — In a broad sweep, some 600 police officers have confiscated thousands of pirated adult DVDs from tens of thousands of unlicensed street vendors, in the process sending a message that the vendors will need to clean up their acts. A proliferation of open public displays of adult DVDs led to the action, which ends a long-standing period of toleration for the vendors. The sweep was justified because, while sale of adult DVDs is not illegal in Mexico, selling pirated ones is.
A few days later, many of the vendors were back, a little more discretely and sometimes staying a few steps away from their stalls, no doubt so they could deny ownership if confronted by police.
From Mark Stevenson, Associated Press, 12/25/05
CHURCH LANDLORD FINALLY GETS STORE OUT
MILFORD, CT — Michael Friend’s Video Pleasures adult store is closing up shop and will turn over the keys to the landlord, which happens to be the Kingdom Life Christian Church. The church bought the building in 2003, using donations from the congregation, with the intention of closing the store down. However, Friend’s lease with the previous landlord included a provision for a three-year extension and he had no intention of moving.
And so it developed that Kingdom Life ended up being a landlord for an adult store; and this may not have been a profitable venture. Friend owes some $4,800 in back rent and leaves now after talk of eviction, according to church officials. Nonetheless, church officials seem happy with the deal.
JAN 5, – FSC Membership Seminar/General Meeting, 5:30 p.m, Venetian Hotel, Rm 403, Las Vegas, NV http://www.freespeechcoalition.com
JAN 5-7, – Internext, The Venetian, Las Vegas, NV http://www.internext-expo.com/index.shtml
JAN 5-8, – AVN Adult Entertainment Expo, Sands Expo Center, Las Vegas, NV, http://show.adultentertainmentexpo.com/adult-expo/v42/index.cvn
JAN 7, – 23rd Annual AVN Awards Celebration, Sands Expo Center, Las Vegas, NV, http://show.adultentertainmentexpo.com/adult-expo/v42/index.cvn
MAR 9, – GAYVN Awards 2006, Rage Nightclub, Santa Monica Blvd., West Hollywood CA , http://www.gayvnawards.com/geninfo.php
APR 24-25, – Celebrate Free Speech Lobbying Days, Sacramento, CA, email@example.com
APR 29, – 2nd Annual Sin City Chamber of Commerce Spring BBQ, Chicken Ranch Brothel, Pahrump, NV (benefit for FSC) http://www.sincitychamberofcommerce.com/chicken_ranch_brothel_bbq_sin_city.htm
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