FSC, Justice Dept. File 2257 Briefs Prior to Oral Arguments

Nov 16, 2015 1:39 PM PST

PHILADELPHIA — The 3rd U.S. Circuit Court of Appeals on Friday received supplemental briefs from the Free Speech Coalition and the Justice Department addressing the applicability of City of Renton v. Playtime Theatres Inc. to the appellate case over the legality of 18 U.S.C. §§ 2257-2257A, the recordkeeping statutes for adult producers.

The two parties submitted the briefs, each no more than 15 pages long, preceding oral arguments in the appellate review of Section 2257, which is slated for Dec. 9 at the 3rd Circuit in Philadelphia.

The U.S. Supreme Court held in Renton in 1986 that cities may impose regulations prohibiting adult theaters from operating within certain areas, finding that the regulation in question was a content-neutral time, place and manner restriction for purported “secondary effects.”

FSC attorneys contend that under a case decided at the U.S. Supreme Court earlier this year, Reed v. Town of Gilbert, the challenged statutes are content-based regulations of speech subject to review under strict scrutiny and that the once-guiding case, Renton, does not survive Reed.

The statutes at issue here burden a particular category of protected expression based on its content — that is, expression containing sexual imagery,” the FSC said in its brief.

“Additionally, they draw content-based distinctions between categories of sexually explicit expression — treating expression depicting actual sexual conduct less favorably than expression depicting simulated sexual conduct. Consequently, they must be evaluated under strict scrutiny.”

The FSC went on to emphasize that the statutes regulate constitutionally protected sexually explicit expression “depicting adults in all manner of genres, including artistic, journalistic, educational and private expression.”

“For the Renton adverse secondary-effects theory to be even analogous, (let alone applicable), it would be necessary to conclude that constitutionally protected expression containing sexual images of adults causes the adverse secondary effect of unprotected child pornography, which, by definition, it does not,” the FSC said.”Protected expression does not cause unprotected expression.

“Child pornography is not an effect — secondary or otherwise — of that expression, like the harms of crime and reduced property values said to be caused by sexually oriented expression offered in adult bookstores and adult nightclubs. To suggest otherwise is a non-sequitur. This is not a secondary effects case.”

The Justice Department, however, said that the appellate court should sustain the constitutionality of the statutes because they have protected minors from sexual exploitation without substantially diminishing the quantity or accessibility of sexually explicit speech.

It noted that the statutes, “far from being an isolated speech regulation,” are part of a comprehensive legislative program to halt child pornography.

“In sum, Renton’s use of intermediate scrutiny recognizes that when the government regulates the non-communicative secondary effects of speech, it is often pursuing significant government interests at low cost to First Amendment freedoms,” the Justice Department said.

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