CANOGA PARK, Calif. - Prominent First Amendment attorney J. Michael Murray, of the Cleveland-based law firm Berkman, Gordon, Murray & DeVan, has been selected by Free Speech Coalition (FSC) to head its impending challenge to the new 2257 regulations which were announced last December and which took effect, according to the U.S. Department of Justice (DOJ) website, on January 20.
Murray's selection comes after a two-month long process and represents FSC's first use of the "Request For Proposal" (RFP) method of bidding for a contract, for which both adult industry and mainstream attorneys and law firms submitted proposals.
"We had an abundance of riches in that all firms that applied were highly competent and impressive," FSC Executive Director Diane Duke said. "After lengthy and careful evaluation, the committee agreed that Michael Murray and the firm of Berkman, Gordon, Murray and DeVan were the right choice."
The selection comes on the heels of the announcement on Wednesday that FSC's existing 2257 suit, which challenged the previous incarnation of the regulations approved by Attorney General Alberto Gonzales' DOJ staff, had been dismissed without prejudice, which means that there will be no legal bar to FSC filing a suit against the new regulations.
It should be noted, however, that the possibility remains that the 2008 revision to the regulations will not be put into effect, since President Obama's Chief of Staff, Rahm Emanuel, had put a 60 day hold on all Bush era regulations which had not taken effect as of January 20 so that the departments affected by those regulations could reevaluate their legality and efficacy. One such regulation that has been abandoned was one proposed by Department of Health and Human Services head Michael Leavitt which would have allowed healthcare providers to refuse to provide abortions and birth control methods to patients, or even to refer them to other providers who would do so, based on religious convictions.
Murray is no stranger to 2257 litigation, having represented Connection Distributing Company, a publisher of "contact" magazines, in an anti-2257 suit begun in 1995, scoring several victories and picking up new plaintiffs along the way until a decision by a three-judge panel of the Sixth Circuit Court of Appeals, which had ruled 2257 unconstitutional, was overturned by an en banc (full court) appellate panel of the same Circuit on Feb. 20. The en banc decision broke down largely along party lines, with most Republican appointees voting to retain the regs and most Democrats upholding the original panel decision. Industry attorneys see 2257 as unnecessary in light of existing child pornography laws, overburdensome in light of the costs involved in keeping and indexing the records, and overinclusive, since records are required to be kept even on porn stars who are clearly over the legal age limit.
"No children are abused in the creation of commercial pornography with young-looking models," Senior Judge Corneila G. Kennedy pointed out in her well-taken dissent to the en banc decision . "The majority distinguishes our case from that in Free Speech Coalition by referring to the level of scrutiny applied - that is, intermediate scrutiny here versus strict scrutiny in Free Speech Coalition, but that does not change the Court's concern with '[p]rotected speech . . . becom[ing] unprotected merely because it resembles' unprotected speech."
It is expected that Murray will be appealing the Connection en banc decision to the U.S. Supreme Court.
Murray will be his law firm's partner in charge of the new FSC case, and a recent FSC press release noted some of his qualifications gleaned from his 32 years of adult entertainment-oriented First Amendment law.
"In addition to his First Amendment advocacy," Duke wrote, "his trial experience spans a wide variety of cases including state and federal criminal prosecutions; civil rights actions involving employment discrimination, sexual harassment, and overreaching by law enforcement; personal injury, product liability and medical malpractice suits; and various business litigation matters at the trial and appellate levels."
Notably, Murray has represented the Lion's Den chain of adult stores in litigation against the state of Kansas's attempts to criminalize the sale of adult novelties.
"I'm very, very excited to be working on behalf of the Free Speech Coalition and very enthusiastic about the contemplated litigation," Murray told AVN, but declined to give additional details until he has had a chance to discuss the lawsuit further with Duke and members of the Free Speech board of directors.
Murray's selection was made by a committee composed of several industry leaders and attorneys, including: FSC Board Member and Titan Media attorney Gil Sperlein; Adam and Eve founder Phil Harvey; FSC member and actor/producer Dave Cummings (who was also a plaintiff in the Denver 2257 case); D.C.-based Raben Group lobbyist Dave Grimaldi; and FSC Board President and Everett Group Consulting President Jim Everett. FSC Executive Director Diane Duke, as well as FSC Board Chair Jeffrey Douglas and FSC Board Legal Committee Chair Reed Lee served in a non-voting advisory capacity during the selection process.