Federal Judge Dismisses FSC’s 2257 Suit

Jul 27, 2010 3:30 PM PST
PHILADELPHIA — U.S. District Court Judge Michael Baylson has granted the government’s motion to dismiss FSC’s 18 U.S.C. § § 2257 and 2257A lawsuit.

The decision comes nearly 10 months after FSC’s initial filing.

“We are disappointed but not surprised,” said Diane Duke, FSC’s executive director. “We could tell at the onset that this judge was going to be a challenge.”

FSC and its attorneys are reviewing the decision over adult record-keeping laws and will comment further on the decision later this week.

“We’ve known all along that the [federal] district courts would be a challenge, as they are staffed with Bush appointees.” Duke said. “Our next option is an appeal at the [federal] circuit court level. We are in the 3rd [U.S. Circuit Court of Appeals] — an optimal circuit for our appeal.”

The FSC, in its original complaint, said 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.

At the time FSC attorney Michael Murray said he planned a “substantial constitutional attack.”

The 14 plaintiffs attached to the suit with the FSC represent a rainbow of individuals, organizations and companies that one way or another publish or screen erotic material, from performers to photographers to studios to an adult entertainment business journalist.

So far, none of the co-plaintiffs have been approached by federal authorities over 2257 record-keeping queries. The 14 co-plaintiffs in the case are:

  • 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.

  • Michael Barone, a photographer.

  • 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.

  • Betty Dodson and Carlin Ross, who co-host a website.
On Tuesday, Baylson rejected the FSC's case, focusing on the trade group's 4th Amendment challenge.

Baylson, in his decision, said that "the government has a substantial interest in preventing sexual exploitation of children in the production of such depictions."

He noted "producers of such depictions have adequate notice that their records will periodically be inspected by government officials" and that "Congress has both authorized inspections and created rules, further fleshed out by implementing regulations, governing the procedures that inspectors must follow."

Baylson also said that his holding is consistent with case law relative to administrative searches and that the searches are for "specific and limited purpose" of inspecting records required in a regulatory scheme.

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