U.S. Appeals Court Sides With FSC Over 2257 Challenges

Mon, Apr 16 2012 09:15am PDT

PHILADELPHIA — The 3rd U.S. Circuit Court of Appeals sided with the Free Speech Coalition on several key points in its appeal over the dismissal of it lawsuit against the Justice Department over 18 U.S.C. §§ 2257 and 2257A, the federal recordkeeping and labeling law.

The court on Monday ruled that it would vacate a lower court ruling that the FSC shouldn't be afforded the opportunity to conduct discovery and develop a record relative to whether 2257 is narrowly tailored.

The court also said it would toss an earlier order dismissing claims for a restraining order over 2257 due to alleged 1st and 4th Amendment challenges over free speech and unreasonable searches and seizures.

It also said it would vacate an earlier decision to deny the FSC's leave to amend its 4th Amendment complaint.

But the court affirmed the district court’s order  in all other respects and remand the case  for further proceedings "consistent with the foregoing opinion."

"We're very excited about this magnificent win at the 3rd Circuit," FSC attorney J. Michael Murray told XBIZ. "We're happy that they agreed that our arguments on the government's constitutional attacks on the 1st and  4th Amendments were worthy.

"It's a great day for freedom of speech," he said.

FSC Executive Director Diane Duke said publicly thanked Murray and attorney Lorraine Baumgardner "for their incredible work on this case thus far.”

"This decision is critical in three ways — it was unanimous, it supports the arguments that FSC has made all along and it supports the 4th amendment question included in our most recent challenge to 2257," Duke said.

"This is a very important next step in our work to eliminate the burden from the adult industry of this onerous regulation.”

U.S. Appeals Court Judge Marjorie Rendell, who concurred with the three-judge panel, wrote that as  "a matter of law the administrative-search exception to the 4th Amendment’s warrant requirement does not justify the warrantless inspections authorized under sections 2257 and 2257A."

"[T]he district court acted prematurely when it dismissed plaintiffs’ 1st and 4th Amendment claims at the pleading stage...," she wrote.

The Free Speech Coalition and 14 co-plaintiffs in February 2011 filed an appeal with the 3rd Circuit Court challenging 18 U.S.C. §§ 2257 and 2257A.

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.

FSC has challenged 2257 regulations on behalf of the adult industry since 2005, when the regulations first came into effect.

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