June 17, 2005 06:00am
FSC Asks for Restraining Order Against 2257
Source: Free Speech X-press
by: Kat Sunlove and Layne Winklebleck
(DENVER, CO) -- As planned, Free Speech Coalition has filed a complaint and motion in the United States District Court of Colorado seeking a Temporary Restraining Order enjoining enforcement of the recently revised federal record-keeping and labeling requirements, 18 U.S.C. § 2257, which are due to go into effect June 23, 2005. The case is Free Speech Coalition v. Alberto Gonzales, # 05 CV 1126 WDM.
The lawsuit, which was filed on behalf of the membership of the Free Speech Coalition by attorneys representing three law firms -- Colorado-based Schwartz & Goldberg PC; Sirkin, Pinales & Schwartz LLP of Ohio; and the New York-based law firm of Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria -- contains over 20 separate claims on which basis FSC is asking the court to issue a Temporary Restraining Order.
The expectation of the attorneys is that the court will order a hearing on the motion for a TRO before the regulations are scheduled to go into effect, at which time plaintiff attorneys H. Louis Sirkin, Paul J. Cambria, Jr., and Michael W. Gross of Schwartz & Goldberg will present arguments for temporary injunctive relief prohibiting the enforcement of the 2257 law.
Significantly, the U.S. District Court of Colorado falls within the jurisdiction of the U.S. Tenth Circuit Court of Appeals, which ruled in Sundance Associates v. Reno, 139 F.3D 804 (10th Cir. 1998), that the governments definition of "secondary producer" was invalid because it went beyond the meaning of the original 2257 statute.
Many so-called secondary producers, such as Webmasters, have relied on Sundance in deciding their record-keeping obligations under the law. However, the Department of Justice, in their revised interpretations of the 2257 law, have explicitly stated that they believe a decision by the D.C. Circuit in American Library Association v. Reno, rather than Sundance, is the correct view of the law. From an FSC press release, 6/16/05