FSC Seeks to Address U.S. Response Over 2257 Challenge

Aug 10, 2015 9:52 AM PST

PHILADELPHIA — It likely will be well into fall when the 3rd U.S. Circuit U.S. Court of Appeals decides whether to allow a full-panel review of the Free Speech Coalition’s challenge over the legality of 18 U.S.C. § 2257.

Late Friday, Free Speech Coalition attorneys filed a petition with the 3rd Circuit to allow them to respond to the Justice Department’s response to its petition for an en banc rehearing.

FSC counsel said that they have not had an opportunity to respond to the
government’s new, alternative argument that a newly decided U.S. Supreme Court ruling does not rely on a change in the precedential case Renton vs. Playtime Theatres Inc.

Last week, the government said that the recent decision in Reed vs. Town of Gilbert, Ariz., 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 FSC petitioned for an en banc review in late June in light of the new high court rulings — Reed vs. Town of Gilbert, Ariz., and City of Los Angeles vs. Patel — and the government responded last week.

Now, the FSC likely will have the chance to respond to the government’s response after they asked the 3rd Circuit to deny the en banc appeal.

The FSC is seeking “leave to file a reply addressing this new argument and explaining why this is not a Renton secondary-effects case and why Reed is controlling here, by Aug. 19.”

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