2257 Regs Violate More Than The First Amendment
By: Mark Kernes
Posted: 09/11/2007
WASHINGTON, D.C. – Among the many comments on the proposed
revisions to the 2257 regulations was one from the firm of Kelley Drye Collier
& Shannon, which argues not that the regs violate adult producers First and
Fifth Amendment rights, but that they fail to comply with the Regulatory
Flexibility Act (RFA).
The report was commissioned by the Free Speech Coalition, as
part of its ongoing fight to protect the adult industry – an industry composed
entirely of what the government considers to be "small businesses" –
from onerous and possibly unconstitutional legislation.
The RFA is a Carter-era law which is "designed to
ensure informed consideration and fair treatment of small entities, including
small businesses, governmental jurisdictions, and non-profit organizations, in
agency rulemaking processes," according to the Kelley Drye report.
Moreover, according to a First Circuit decision in 1997, the
RFA requires an agency like the U.S. Department of Justice (DOJ) to
"mull[] other options in good faith, and s[eek] to strike the best
available balance between [statutory] goals and the legitimate concerns of the
regulated community."
That need to "strike the best available balance"
was echoed in a 2002 Executive Order issued by President Bush, which required
all federal agencies to develop "written procedures and policies ... to
ensure that the potential impacts of agencies draft rules on small businesses
are properly considered during the rulemaking process."
And indeed, the Justice Department claims, in statements
accompanying its latest attempt to revise the 2257 regulations, that it had
"drafted the rule to minimize its effect on small businesses while meeting
its intended objectives," and that "[b]ased 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."
The "Regulatory Procedures" section of the 2007
proposed regs then goes on to claim that establishing the identity of every
performer involved in sexually explicit content "is critical to determining
and assuring that no performer is a minor." However, of the 22 2257
inspections conducted so far, of both large and small adult production
companies, the FBI has turned up no evidence of any minors having been involved
in those productions.
Nonetheless, the new proposed 2257 regulations include a
statement that the Justice Department "requests affected small businesses
to estimate what these regulations will cost as a percentage of their total
revenues in order to enable the Department to ensure that small businesses are
not unduly burdened," and Free Speech Coalition in fact commissioned just
such a study, from Georgetown Economic Services, which also has now been
submitted to the Justice Department.
However, the DOJ itself appears to have performed no such
studies regarding the costs to the industry of the proposed 2257 regulations,
and according to the Kelley Drye report, "the Department must take a step
back from proceeding directly from a proposed to final rule," and that it
may not proceed to such final rule "based on such flawed threshold
analyses."
"In order to comply with the law," the report
concludes, "the Department must 'engage in a careful and meaningful study
of the problem from the beginning,'" and must "undertake the kinds of
information-gathering, industry out-reach, and alternatives analyses required
by the RFA and applicable compliance guidance, including the Department's own,
as opposed to opting to pursue 'an insular approach designed to block further
investigation and public scrutiny'," all as required by the Justice
Department's own guidelines on the subject.
Those guidelines require the DOJ to perform its own
investigation into the costs of regulating the industry through 2257, and does
not permit it, as it has attempted to do through the above-quoted statement in
the proposed new regs, to shift the burden of cost estimation onto the industry
itself.
"This report is just devastating to the
government," opined Jeffrey Douglas, chair of the Free Speech Coalition
board. "The Justice Department has utterly failed to do what it is
required to do, which is to do everything possible to ameliorate the economic
impact of these regulations on small businesses."
"The Department's obligation is to go back, start from
scratch, open up dialog with the adult industry in a half a dozen different
sectors to figure out what the impact of the new regulations are," Douglas
continued, "and they are obliged to use the least-restrictive alternative
in each case."
"DOJ now has essentially two options," Douglas
concluded. "One is to go back to the drawing board and start this dialog
that hasn't yet existed, which will easily take them beyond the current
administration, or blow it off and give a trial court good reason to send it
back to them, irrespective of any of the First Amendment or other
constitutional issues."
