U.S. Says Full-Panel Rehearing of 2257 Is Unwarranted

Aug 5, 2015 4:47 PM PST

WASHINGTON — The U.S. Attorney General’s office, in response to the Free Speech Coalition’s motion to rehear its challenge over the legality of 18 U.S.C. § 2257, has asked the 3rd U.S. Circuit Court of Appeals to deny a full-panel rehearing of the case.

The FSC’s motion to rehear an en banc appeal over the record-keeping statute for adult filmmakers known as 2257 has its roots in two recent U.S. Supreme Court cases decided — Reed vs. Town of Gilbert, Ariz., and City of Los Angeles vs. Patel — that could possibly affect the outcome of the case.

The adult entertainment trade group filed the motion to rehear its appeal after the recent high court rulings and after a three-judge 3rd Circuit panel left intact the core of the recordkeeping regulation’s tenets for producers of sexually explicit content with the exception of warrantless inspections of records.

The 3rd Circuit said that 2257, for the most part, was "narrowly tailored" and, therefore, constitutional.

But the two new high court rulings gave hope for the FSC to use as tools to help topple the statutes, and it filed a petition for rehearing the case.

Today’s response by the government said that the FSC’s argument over the implications of Reed vs. Town of Gilbert, Ariz., was flawed because the appellate court’s decision over 2257 was fully consistent with it.

In Reed, the U.S. Supreme Court ruled that the provisions of a municipality’s sign code that impose more stringent restrictions on signs directing the public to the meeting of a nonprofit group than on signs conveying other messages are content-based regulations of speech that cannot survive strict scrutiny. To pass strict scrutiny, the law must further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.

Today, the government said that the recent decision in Reed does not affect the continued authority of a secondary-effects doctrine under Renton vs. Playtime Theatres Inc., which makes operators subject to intermediate First Amendment scrutiny — or regulation that does not directly target speech but has a substantial impact on a particular message.

“The D.C. Circuit, the 6th Circuit, and this court have all recognized that the statutes are subject to intermediate scrutiny because they are designed to forestall an especially pernicious secondary effect of the production and distribution of sexually explicit speech — namely, the sexual exploitation of minors,” the government said.

“The Supreme Court’s recent decision in Reed does not overrule Renton and does not address — indeed, does not even mention — Renton’s secondary-effects doctrine. Because Renton prescribes the use of intermediate scrutiny here, and because Reed leaves Renton’s authority undisturbed, Reed provides no reason for the panel to reconsider its original holding that the statutes are subject to intermediate scrutiny.

The government today also said that the decision in City of Los Angeles vs. Patel did not warrant a rehearing in the FSC’s case.

In City of Los Angeles vs. Patel, U.S. justices ruled that a Los Angeles municipal code that requires hotel operators to record and keep specific information about their guests on the premises for a 90-day period and to make those records available to "any officer of the LAPD for inspection" on demand, is facially unconstitutional because it fails to provide the operators with an opportunity for pre-compliance review.

“The Supreme Court in City of Los Angeles vs. Patel clarified the contours of the administrative search doctrine,” the government said. “This court, however, has already held that the inspection regulations plaintiff’s challenge cannot be justified as administrative searches.

“The Department of Justice is preparing to revise the regulations to comply both with this court’s ruling and with Patel. As a result, Patel provides no occasion for further consideration by this court of the administrative search issue.”

Attorney J. Michael Murray, who, along with counsel Lorraine Baumgardner, represents the FSC in their case that seeks to shoot down 2257, said that the government’s response "wasn’t unanticipated" in its conclusion that a rehearing of the appeal was unwarranted.

“The government’s logic in their response is flawed; this is not a zoning case,” Murray told XBIZ this afternoon in reference to the government's response to the high court’s recent Reed decision.

“I think their argument, that there could be adverse secondary affects if the statute isn’t in effect, is incorrect.”

Murray said that the 3rd Circuit likely will rule on the motion for rehearing the appeal in several weeks.

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