U.S. Judge Gives Reasons for Denying Cross Motions in 2257 Case

May 20, 2013 5:15 PM PST

PHILADELPHIA — U.S. District Judge Michael Baylson on Monday detailed his reasons for denying both the Free Speech Coalition's and U.S. government's motions for summary judgment in a case that is expected to decide the legality of 18 U.S.C. § 2257 and companion law § 2257A.

Baylson, in his memorandum and order denying the cross motions, said that there were substantial reasons why he couldn't render any opinion prior to June 4, the scheduled trial date.

In particular, Baylson said that the summary judgment materials produced by both sides "are so voluminous and detailed that the court would have difficulty in rendering a fully articulated memorandum."

The Philadelphia federal jurist noted that the material submitted by both parties on summary  judgment stacked together are several feet high, representing hundreds of pages of briefs,  allegedly undisputed facts, deposition excerpts and other exhibits. More than 70 cases have been cited by the parties, he said.

"The court cannot meaningfully digest all of this material and render a fully analytical memorandum opinion in the 14 days left until the trial begins," Baylson said. "Reviewing even a portion of this material in the seven days since it has been filed has taken a great deal of time."

But Baylson emphasized that, most importantly, "the case touches upon important, controversial issues which are frequently debated in public."

"As the 3rd U.S. Circuit Court of Appeal remanded for a factual inquiry, an open courtroom with live witnesses is the best forum to assure a full and fair exposure of the issues," he said.

In discussing merits of the motions, Baylson noted that the court would benefit from testimony  presented by both parties as to whether the statutes ultimately chosen, Sections 2257 and  2257A, were a narrowly tailored alternative to combat child pornography.

"From plaintiffs, the court would benefit from testimony by witnesses regarding what might have been a more appropriate line for Congress to have drawn – i.e., to require recordkeeping only from producers who use  models over age  30 or  40  or 50," Baylson said. "From defendants,  the court would benefit from testimony as to why any other statutory scheme would not be appropriate, and as to why the prophylactic nature of Sections 2257 and 2257A is the most effective mechanism to further Congress’s intent.

"The parties also dispute the reasonableness of the inspections and whether the FBI needed to carry them out without a warrant to effectuate Congress’s goal of combatting child pornography," he said. "These questions of fact – concerning the expectations of privacy in the areas searched, the character of the searches and whether they progressed in a cooperative and consensual manner, and the overall  reasonableness  of the FBI’s conduct –  are best resolved through trial, where there is the possibility for in-court testimony, credibility assessments,  and cross-examination. 

"Given that both  parties  rely so heavily on FBI reports, the court also believes it is essential that the FBI agents involved in the investigations be subjected to cross-examination and possible questioning by the court."

The FSC, which filed suit against the government more than three years ago along with the 13 co-plaintiffs, asserts that the federal recordkeeping law for porn producers is unconstitutional because it violates constitutional protections against unreasonable search and seizures under the 4th Amendment.

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

While the inspections haven't been employed by the government for some time, the law continues to be in the books and federal inspectors may at any time launch inspections of the records and prosecute any infraction.

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.

In 2008, the Justice Department modified 2257 to provide visual depictions of simulated sexually explicit conduct fall within the scope of materials for which the recordkeeping requirement is triggered; actual lascivious exhibitions of the genitals or pubic area are also within the scope of materials triggering the requirement; and producers may use third-party custodians to store their records.

Trial in the case begins June 4 at U.S. District Court in Philadelphia. Baylson earlier said that  a decision is due no later than July 30.

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