FSC, Justice Dept. Face Off Over 2257 in Oral Arguments

Mar 15, 2010 4:00 PM PST
PHILADELPHIA — Oral arguments were heard Friday over the government's request to dismiss the Free Speech Coalition's suit, with the federal judge in the case expected to rule on the motion after both parties file supplemental briefs.

Meanwhile, 23 members of U.S. Congress have lined up with the American Center for Law and Justice as it sides with the federal government's contention that 18 U.S.C. § § 2257 and 2257A regulations are constitutional. The congressmen and law group have filed proposed amicus briefs to the court.

U.S. District Judge Michael Baylson, who heard more than two-and-a-half hours of oral arguments from both sides, said that he might be skeptical of overturning an entire statute based on speculation.

"Why shouldn't a ruling on [2257] await an actual search and demand to see if it offends the 1st Amendment, due process and the 4th Amendment?" Baylson asked. "The concept of requiring the records does not seem to be unconstitutional."

The FSC and 14 other plaintiffs claim in a suit filed last year against the government at U.S. District Court in Philadelphia that the revised 2257 and 2257A regulations are unconstitutional, as well as an unfair burden placed to producers to comply with the regulations. None of the plaintiffs, however, have been asked to reveal 2257 records to federal agents.

In oral arguments, FSC attorney Michael Murray said that 2257 regulations are not just intrusive to commercial pornographers but to journalists, artist and private citizens, as well.

"The problem [with 2257] is that it is over-inclusive, over-broad and not narrowly tailored because it applies to vast quantities of protected material that is for adults and not child porn," Murray said.

"You cannot conceive a set of facts in which an inspection they would conduct would be an investigation that would not violate the 4th Amendment," he said. "The government is shifting burdens to innocent Americans to prove their material is protected when it is the government that should bear the burden."

FSC Executive Director Diane Duke told XBIZ on Monday that while the oral arguments were lengthy, "I understand we did a great job at addressing the judge’s questions. Now we wait."

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; gay porn studio Channel 1 Releasing; 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.

So far the ACLU and the Electronic Frontier Foundation also have joined forces with the FSC as friends of the court.

Last week, the American Center for Law and Justice joined as friends of the court for the government. The 23 congressmen joining the organization, all members of the U.S. House of Representatives, include Thaddeus McCotter, Todd Akin, Rob Bishop, Dan Burton, Jason Chaffetz, Michael Conaway, John Fleming, Randy Forbes, Phil Gingrey, Louie Gohmert, Bob Inglis, Steve King, Robert Latta, Don Manzullo, Kenny Marchant, Jerry Moran, Mike Pence, Joe Pitts, Bill Posey, Tom Rooney, Jean Schmidt, John Shimkus and Todd Tiahrt.

The American Center for Law and Justice was founded in 1990 by evangelical Pat Robertson as a nonprofit public interest law firm.

Baylson, who said "there's a lot of work to do" in the case and that he hasn't made up his mind over the issues, told the parties he'd respond to the government's motion after both sides send over supplemental briefs, which are due in 10 days for the FSC. The government will supply their briefs 10 days after the FSC makes their filing.

Each brief must be no longer than 10 pages, Baylson ordered.

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