FSC, Justice Dept. Attorneys Give Arguments in 2257 Appeal

Dec 9, 2014 2:15 PM PST

PHILADELPHIA — Attorneys for the Free Speech Coalition and the U.S. Justice Department gave opposing arguments today in an appellate hearing in the case Free Speech Coalition vs. Holder. 

Both sides were allotted 20 minutes apiece at the 3rd U.S. Circuit Court of Appeals for their respective arguments involving 18 U.S.C. §§ 2257 and 2257A, the federal record-keeping laws for adult producers.

In the appeal, the FSC and other co-plaintiffs have asked the 3rd Circuit to remand the case back to the lower court with instructions to enter a judgment declaring the laws unconstitutional under the 1st and 4th Amendments.

The 3rd Circuit panel hearing the arguments in Philadelphia were Judges D. Brooks Smith, Anthony J. Scirica and Marjorie “Midge” Rendell.

Attorney J. Michael Murray represented the FSC, while the Justice Department had attorney Anne Murphy arguing on its side.

Murray made his arguments first, trying to show the three judges that 2257 and 2257A do, in fact, present an unfair burden on providers of sexually explicit material.

Murray told the three judges that 2257 was unnecessary because “the adult film industry has always collected the IDs of its performers.”

Smith, questioning Murray, noted that one of the main arguments in favor of 2257 is that is a useful tool for the federal government and law enforcement in their efforts against child pornography — and Murray responded that people in the adult entertainment industry “abhor child pornography” and want nothing to do with it. 

“There is no child pornography being disseminated by the plaintiffs in this case,” Murray told Rendell, Smith and Scirica.

Smith, however, said he was concerned that there could be times in which it is difficult to tell how old adult performers are and therefore, 2257 could be helpful in determining their ages. Murray responded that the adult industry had strict record-keeping requirements long before 2257 and that 2257 is unnecessarily “burdensome” for adult businesses.

Rendell, during Murray’s arguments, noted that during the 2257 trial in June 2013, the subject of “sexting” came up.

In 2013, Murray argued that because millions of Americans are sending sexually explicit images electronically via smartphones and mobile devices, they could be in violation of 2257. And Murray made the same point today, telling the judges that those Americans could be in violation of 2257.

Any “erotic pose,” Murray said, “has the risk of being covered by this statute. It applies to every single American.” And that includes millions of Americans who have no involvement in the adult industry — including, Murray said, Americans who are sexting and are not involved in the sale of commercial porn.

“There isn’t a commercial limitation on it,” Murray said of 2257. 

The record-keeping law “goes so far beyond reasonable record-keeping,” Murray told the judges, adding that 2257A “captures simulated sexual conduct.”

He added that 2257 is problematic because “perfection is the minimum” standard, and if they fail to meet that standard, creators of erotic material could possibly be subject to federal prosecution.

Murray said, more than once during his argument, that with 2257 requirements, “the 4th Amendment rights” of millions of Americans, are in danger of “an unreasonable search and seizure.” And that includes both people who work in the adult entertainment industry and people outside of the industry.

One of 2257’s unreasonable requirements, Murray said, is that porn companies are required to have someone present at least 20 hours per week for a possible FBI inspection.  “You have to be poised at all times to receive the FBI,” Murray said of 2257. And Murray told the judges that for some adult companies, it is impractical and difficult to have someone on their premises 20 hours per week or more.

The government's attorney, Murphy, gave her rebuttal and argued that 2257’s requirements were not unreasonable or unconstitutional. Murphy, addressing the three judges, argued that 2257 is reasonable because “there are many producers” of adult material who use “young-looking models.”

Reflecting on the case that the federal government presented in 2013, Murphy said, “the evidence was very clear that there were numerous images of body parts” in porn and that the government has “a compelling interest and a serious interest” in making sure that anyone who participating in porn is at least 18 years of age.

Having a youthful appearance, Murphy argued, is the norm in the adult entertainment industry. And in 2013, Murphy said, the federal government demonstrated that even with “MILF porn” and “granny porn,” the models were “predominantly young-looking.”

“These plaintiffs have failed to show” that 2257 presents an unfair burden, Murphy told the judges. Murphy went on to say that the federal government has demonstrated that “there is value in the federal statute.”

During Murphy’s rebuttal, Rendell brought up the ways in which technology has evolved and how that evolution could possibly affect the distribution of erotic images. “It’s a different era,” Rendell said as she compared the digital era of today with the non-digital technology of the past.

Rendell noted that in the pre-digital era, one could not use “a Kodak” to take an unlimited number of images without it being “costly.” But these days, Rendell said, one can use digital technology to take numerous images without having to spend a lot of money.

“There is a proliferation of images that are being made public” in the digital realm, Rendell noted. That includes sexually explicit images, Rendell said. And could those images possibly pose legal problems for people who do not work in the adult industry and are not using those images for commercial purposes, Rendell wondered..

But Murphy did not appear concerned that non-commercial images, however sexually explicit, were in danger of facing any type of problems for not being 2257-compliant. In contrast to the FSC’s concerns about 2257 possibly affecting the digital distribution of non-commercial erotic images, Murphy maintained that 2257’s record-keeping requirements are meant for commercial, profit-oriented adult enterprises — not private individuals.

Throughout the case, attorneys for the Justice Department have contended that 2257 requirements are not overly broad and do not affect as much of the U.S. population as the FSC contends.

The 2257-related FBI searches of the past, Murphy said, were searches of commercial, profit-oriented adult companies rather private individuals who were not sending images for non-commercial purposes.

Murphy also seemed to imply that for porn companies, digital technology could make 2257-related record keeping easier and more efficient. In this ongoing case, Murphy said, the Justice Department has demonstrated that “increasingly, the records are being kept electronically.”

Murphy discussed the FBI’s 2257-related searches of adult companies, telling the judges, “Even though there were searches, they were not intrusive.”

Murphy added, “I think the district court was impressed by the fact that this had been handled” in a non-intrusive way.”

Rendell, during Murphy’s rebuttal, also brought up the ways in which the FBI’s 2257-related searches of adult companies were made in the past. Rendell expressed some concern over 2257 searches being “warrantless.”

Murphy, however, described the FBI’s 2257-related inspections of the 2000s as “very limited.” And more than once, she brought up the fact that there have been no 2257 inspections since 2008, when the Justice Department under President George W. Bush halted the inspection program.

After Murphy made her arguments, Murray had several minutes to rebut them. Murray strongly disagreed with Murphy’s assertion that the FBI’s 2257-related searches of the past were not intrusive. “These were massive searches. They were searches in every sense of the word,” Murray asserted.

Murray reiterated that 2257 is not only a problem for porn companies, but for anyone who sends any type of erotic image — even “millions of husbands and wives” who are not in the adult industry at all.

“These are all images that could trigger 2257,” Murray said of the abundance of sexting that is taking place in 2014. There are, Murray stressed, numerous Americans who regularly “post these images, not for sale and not for trade.” And there is no reason to believe that 2257 does not apply to “private, non-commercial expression,” Murray said.

Murray added that millions of Americans who do not work in the adult industry in any capacity “may be ignorant of 2257” and do not know that at some point in the future, it could affect them.

Murray contended that a lack of knowledge of 2257 on the part of millions of Americans could prove problematic at some point in the future.  

Rendell thanked both sides for their arguments and said she would “take it under advisement.”

When the trial for Free Speech Coalition vs. Holder took place in June 2013, the court heard an abundance of testimony on behalf of the FSC and the Justice Department.

U.S. District Judge Michael M. Baylson later ruled that record-keeping requirements for adult material under laws 2257 and 2257A were constitutional and did not violate the 4th Amendment to the U.S. Constitution except in one respect: “the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record.”

Witnesses who testified on behalf of the FSC in June 2013 included erotic photographer Barbara Nitke, Dr. Betty Dodson (a leading figure in the so-called “sex-positive feminist movement”), Dodson’s business partner Carlin Ross, journalist Tom Hymes, attorney Jeffrey J. Douglas, sexologist Carol Queen and Dr. Daniel Linz. Anti-porn feminist Gail Dines and anti-child pornography researcher Janis Wolak testified on behalf of the Justice Department.

Dines, during her June 2013 testimony, discussed the “teen porn” genre of adult entertainment. Dines said the fact that some adult companies were describing their product as “teen porn” showed the adult industry to be very youth-focused.

The Justice Department, with Dines’ testimony, set out to demonstrate that because there were so many youthful faces in porn, 2257 was necessary to make sure they were adults.

Murray, however, said during the trial that the term “teen porn” is really just a figure of speech because the participants are legal adults, not minors, and that adult companies go to great lengths to make sure that all of their performers are old enough to legally participate in the material. 

During that 2013 trial, attorneys for the Justice Department often brought up the same point that Anne Murphy made today: that there have been no 2257-related searches since 2008.

The federal government discontinued its program of 2257 inspections when George W. Bush was still in office, and the administration of President Barack Obama (including Attorney General Eric Holder) has expressed no interest in bringing back the program.

However, Murray noted more than once during the trial that 2257 and 2257A were still on the books — the fact that the FBI searches were discontinued did not mean that the law itself was discontinued. And that was one of the reasons, Murphy said in 2013, why the FSC’s case against the federal government needed to go forward.

Murphy also pointed out in 2013 that even though Holder and others in the Obama Administration had expressed no interest in bringing back 2257-related FBI inspections, that did not mean that a future presidential administration could not decide to implement a new 2257 inspection program. Obama and Holder’s lack of interest in reviving those 2257 inspections, Murray has said, is irrelevant because the Obama Administration will not be in power forever.

When Baylson made his closing statements at the final day of the trial in June 2013, he complimented both sides for being well-prepared. Baylson discussed, in detail, the testimony of witnesses for both the FSC and the federal government. Baylson, for example, analyzed the testimony of veteran adult film star Nina Hartley, who was a witness for the FSC and had testified that she found the record-keeping requirements of 2257 to be costly and burdensome.

But Baylson said in his closing statements that he put a “low weight” on the 2257-related expenses that Hartley said she was incurring and added that “compared to the dangers of child pornography,” he did not think that “record-keeping expenses” were “unconstitutional” for “people who are in the adult industry to make money.”

And in July 2013, Baylson ruled in favor of the Justice Department, upholding 2257 and 2257A as constitutional. Attorneys for the FSC, as expected, appealed Baylson’s ruling.

Now, both sides of the long-running case await the 3rd Circuit's outcome to arguments that were made today.

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