FSC Files Summary Judgment Motion as 2257 Trial Nears

May 13, 2013 4:30 PM PST

PHILADELPHIA — The Free Speech Coalition on Friday filed a motion for summary judgment in the trade organization's civil case against the federal government over the legality of 18 U.S.C. § 2257.

The FSC asked the federal court in Philadelphia to dump the federal record-keeping law for adult producers because the statutes are unconstitutionally overbroad on their face under the First Amendment and that the laws and implementing regulations authorize warrantless searches and seizures in violation of the Fourth Amendment.

Also on Friday, the Justice Department filed its own memorandum in support of its own motion to dismiss the case.

With both sides arguing their points of law in pretrial motions, U.S. District Judge Michael Baylson likely won't rule on the motions as trial is scheduled to begin next month.

In March, Baylson noted that because the case is on remand from the 3rd U.S. Circuit Court of Appeals for determination of certain facts, he's more inclined for a trial rather than deciding summary judgment.

Baylson earlier said that if the case goes to trial, a decision would be expected before August.

FSC attorneys said in their motion for summary judgment filed Friday that 2257 and its companion section 2257A burdens a substantial amount of speech that lies far beyond the statutes’ purported goal “of protecting children from sexual exploitation.”

Sections 2257 and 2257A impose a record-keeping requirement on producers of sexually explicit materials and require that they make such records available to the government for inspection at all reasonable times.

The regulations spell out requirements for the maintenance, categorization, location and inspection of records, as well as legal grounds for exemption of these requirements. They require that records be maintained for five years after the dissolution of a business that had been required to maintain them.

FSC attorneys in their motion said that times have changed in the years the case has been litigated and that millions of citizens exchange sex depictions and images on computers as private citizens not engaged in an economic enterprise but simply “to share sexually explicit images with one another."

As a result, the FSC's attorneys said, "each person who sends a sext, creates a boudoir photo or video, or exchanges sexually explicit images on an adult social network website must maintain a copy of his or her photo identification together with a copy of his or her sexual imagery and must label the image with a statement listing the location of the records, namely, his or her home address."

"Millions of Americans who share purely personal sexually explicit imagery with one another as part of their sexual lives are required, on pain of criminal prosecution, to comply with 18 U.S.C. §§ 2257, 2257A," FSC counsel said.

FSC attorneys recited information relative to 29 inspections conducted between July 24, 2006, and Sept. 19, 2007 without a search warrant under 2257. 

According to FBI records, companies inspected during that period included Evasive Angels, Darkside (inspected twice), Silver Star, All Good, Robert Hill (inspected twice), Diabolic, Tennervision, Private Media Group, K-Beech, Wicked Pictures, Dead Men, Angry Young Men, Moonlight, Shanes World, Don Goo, JT Video, Bacchus, Cinema Play, Gentlemens, Temptations, Agency, Shooting Star, Real Wild Girls, Alexis Lords, Candid Cams, Ghost Pro and Pony Boy.

FBI agents entered the places of businesses to perform inspections of 2257 records — six were private residences — and inspected records for upwards to six hours,  according to Justice Department testimony.

"[The government] constituted a common law trespass as well as a violation of the producer’s reasonable expectation of privacy in his or her home and private business areas and records to which the general public is not granted access," FSC attorneys said. "And in each instance, the searches were conducted without probable cause and without a warrant.

"Moreover, the agents’ examination and copying of the producers’ records and taking photos while on those premises constituted a search and seizure under the Fourth Amendment."

The FSC relied on depositions from co-plaintiffs against the government's stance over 2257, including testimony from  Barbara Alper, Francis Biro, BettyDodson, Jeffrey Douglas, Marie Levine, David Levingston, Eugene Mopsik, Barbara Nitke, Carol Queen, Carlin Ross, Steven David Steinberg and Linda Dian Wilson.

The court also heard from leading authorities in sex and technology and computer forensics, including Dan Linz, Marc Zimmerman, Michelle Drouin, William Livingston and Kristi Witsman.

The federal government, in its own memorandum in support of its own motion to dismiss the case, maintained that the interest in ensuring producers take "the simple precaution of checking the ages of the individuals who appear in such work, and keep records having done so, is compelling."

"Indeed, if the prophylactic measures set forth in 2257 and 2257A fail, the gravest consequence is not that other statutory provisions (those that criminalize child pornography possession and distribution) will be violated; it is the risk that children will be harmed through their exploitation in the creation of sexually explicit material," the Justice Department said.

In their motion Friday, the government requested the court grant summary in their favor on their First Amendment facial overbreadth and Fourth Amendment claims.

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