FSC's Appeal Over 2257 Coming Down to the Wire

Aug 6, 2014 12:00 PM PST

PHILADELPHIA — The Free Speech Coalition and other co-plaintiffs on Thursday filed a reply brief with the 3rd U.S. Circuit Court of Appeal, asking for the case to be remanded back to the trial court with instructions to enter a judgment declaring 18 U.S.C. §§ 2257 and 2257A unconstitutional under the First and Fourth Amendments.

Jeffrey Douglas, the FSC's board chair, told XBIZ on Wednesday that "the trial court’s opinion was a grave disappointment, but we are optimistic about the appeal." 

"The reply brief, representing the last written advocacy that goes before the 3rd Circuit Court, is a remarkable piece of legal argumentation," said Douglas, also an adult entertainment industry attorney. "The entire team at the Free Speech Coalition is very pleased."

The FSC, in its reply brief, again asked for the 3rd Circuit to permanently enjoin the enforcement of the record-keeping law for adult producers.

The adult entertainment trade organization offered more examples from previous testimony why the federal laws are unconstitutional.

U.S. District Judge Michael Baylson last year found 18 U.S.C. §§ 2257 and 2257A constitutional under the Fourth Amendment, except for in one regard — "the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record."

"[T]he record here demonstrates that the statutes 'impose serious burdens' on expression that 'have clearly taken their toll' on plaintiffs’ speech — a fact the government has assiduously avoided discussing," FSC attorneys wrote in the reply brief.

"Jeffrey Douglas, chair of the Free Speech Coalition, described the Gordian knot posed by the various statutory and regulatory requirements with which commercial producers, retailers and distributors of adult materials must comply — many of which are all but impossible," FSC attorneys wrote.

"Producers must assure that their records are properly alphabetized, photo identification is precisely placed in the correct file, indices are up-to-date, and records are in perfect order when the government knocks at their door for inspection; wholesalers, in addition to obtaining the requisite records from each producer of the materials they offer, must sort through this mass of records to prepare their own indices and cross-referencing systems, which again must be available for inspection at a moment’s notice; retailers and distributors must examine every piece of inventory — both print and digital — to verify it contains a compliant label on its packaging as well as on the DVD or video inside. 

"Any misstep in compliance with these requirements is not punished by a simple administrative penalty as under other regulatory recordkeeping schemes, but by a potential prison term of up to five years."

FSC attorneys in their reply brief cited scores of examples that have "snuffed out speech" from witnesses who testified at trial court, including adult film star Marie Levine; website owners Betty Dodson, Carlin Ross and Tom Hymes; and others.

"Are these burdens necessary to achieve the government’s interests?" asked FSC counsel, in its contention that the laws are unconstitutional because they are overbroad.

While the government doesn't contend there is a widespread problem with under-age individuals performing, "the government ... insists on a universal age-verification procedure enforced by criminal sanction ...," FSC lawyers said.

"Between 2002 and 2012, nearly 4,000 prosecutions were brought for child pornography offenses under 18 U.S.C. § 2252A. Janis Wolak, the government’s expert on child pornography testified the success rate of these prosecutions is 'extremely high,' FSC attorneys said.

"In contrast, for the same period of time, only nine prosecutions were brought under 18 U.S.C.§ 2257; no prosecution has ever been brought under 18 U.S.C. § 2257A.

"These bare statistics cast considerable doubt on the government’s prediction that invalidating the statutes would place minors at increased risk of exploitation."

FSC counsel said that the government’s main argument relies on the popularity of the "teen porn" genre.

"It argues the entire universe of sexual imagery must be saddled with these burdensome requirements because performers’ ages in teen porn, cannot be determined by visual inspection alone,” FSC counsel said.

But the government’s argument was undermined by the testimony of its own expert, FSC counsel said.

"Gail Dines testified  teen porn constitutes only between one-fourth and one-third of all commercially produced adult expression," FSC attorneys wrote. "Based on the data available to her, Dines estimated only one-third of commercially produced sexual expression depicted adult performers who are youthful-looking enough to be confused as minors — leaving the remaining two-thirds of commercially produced sexually explicit expression  unnecessarily burdened by the statutes."

FSC attorneys also cited other testimony that bolstered the case that the laws are overbroad,  including evidence that   the  production  of  sexual imagery  by  married  couples helps “keep  the  spark  going”  in  long-distance  relationships and the use of technology to find dates over the Internet.

In closing the FSC said that while  the  government  said it has " voluntarily  suspended"  the 2257 inspection program,  the  voluntary  cessation  has  no  effect  on  "the  justiciability"  of  the FSC Fourth Amendment  claim  when,  as the district  court  observed,  it may  resume such inspections  at  any  time.   

"The statutes and regulations remain the same," FSC counsel said. "They require  the  government  to  adhere  to  the  same  procedure  followed  by  the  FBI  in conducting  the  29  prior  inspections — entering  homes,  offices,  and  studios  where records are maintained, “without delay” and without  advance notice for the purpose searching through them."

Douglas told XBIZ that the FSC is "extremely proud of the exceptional job our attorneys, J. Michael Murray and Lorraine Baumgardner, have done throughout this long, challenging litigation."

"We lacked the funding to put on the case we and our lawyers had wanted to do, but nevertheless,the trial was an outstanding success," he said.

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