U.S. Bears Burden of Proving 2257’s Constitutionality, FSC Says

Feb 2, 2010 6:00 AM PST
PHILADELPHIA — The Free Speech Coalition on Monday challenged the government’s stance in its opposition for a preliminary injunction over revised record-keeping rules, claiming that regulators have the burden of proving 2257's constitutionality.

The FSC and 14 other plaintiffs claim in a suit filed against the government at U.S. District Court in Philadelphia that the revised 18 U.S.C. § § 2257 and 2257A regulations are unconstitutional, as well as an unfair burden placed to producers to comply with the regulations.

The U.S. Attorney General’s office in December asked a federal judge to dismiss the Free Speech Coalition’s lawsuit challenging the revised rules.

It said that despite recent statutory amendments and the promulgation of new regulations, the FSC’s challenge presents very little that has not been addressed and rejected previously by other courts.

The government further contends that no search or seizure has as yet occurred and that courts generally refrain from addressing 4th Amendment issues in the abstract. It also said that inspections are limited to the records that primary producers "must create and maintain to comply" with §§ 2257 and 2257A.

But the FSC, in a motion filed Monday, said that the time is ripe for a challenge to the rules.

“[The government] has offered no evidence … demonstrating the existence of the alleged problem of the inadvertent, careless, reckless or intentional use of underage performers — much less its extent or severity — by those who produce constitutionally protected adult speech like members of plaintiff Free Speech Coalition or [the 14 plaintiffs] who produce constitutionally protected adult speech for artistic, journalistic, educational or therapeutic purposes,” FSC attorneys wrote.

The FSC said in the motion that it is the “government that bears the burden of proving the constitutionality of §§ 2257 and 2257A.”

“In defending the constitutionality of a regulation of speech, the government bears the burden of demonstrating at minimum (1) the existence of the problem which it claims the regulation addresses, (2) the regulation advances its goals in addressing that problem and (3) the regulation is narrowly tailored and does not burden substantially more speech than is necessary,” wrote the FSC attorneys, citing three federal decisions.

“[The government] must put on evidence establishing each component; [the FSC and other plaintiffs] are likewise entitled to put on evidence showing that these constitutional requirements have not been met as well as evidence in support of their claims that the statutes are unconstitutionally overbroad.”

Besides the FSC, the plaintiffs attached to the suit include the American Society of Media Photographers, which represents 7,000 members; Barbara Nitke, a teacher at the School of Visual Arts in New York and a commercial photographer; David Steinberg, a photographer and writer of sexual issues; Nina Hartley, a performer and website owner; and Michael Barone, a photographer;

The plaintiffs list also includes Dave Cummings, an adult industry performer who owns numerous websites; Tom Hymes, an adult industry journalist who runs a website; Sinclair Institute, which operates sexual health clinics; Channel 1 Releasing, which operates a gay porn studio; Barbara Alper, a photographer; Carol Queen, a sexologist and feminist sex educator; Dave Levingston, a photographer; and Betty Dodson and Carlin Ross, who co-host a website.

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