FSC, Justice Dept. Give Opposing Arguments at 2257 Hearing

Dec 9, 2015 10:50 AM PST

PHILADELPHIA — Attorneys for the Free Speech Coalition and the Justice Department gave opposing arguments today in an appellate hearing over 18 U.S.C. §§ 2257, 2257A, the federal recordkeeping statutes that govern sexually explicit material in the U.S.

In Free Speech Coalition v. Attorney General, the FSC has argued that 2257 is an unconstitutional violation of the First and Fourth Amendments of the U.S. Constitution, while the Justice Department has maintained that the law does not impose an unfair or unconstitutional burden on producers of adult content.

Today’s hearing was held in the Ceremonial Courtroom of the James A. Byrne Federal Courthouse in the center of Philadelphia.

Originally, the hearing was to be held in the Albert Branson Maris Courtroom on the 19th floor of the courthouse, but it was moved to the Ceremonial Courtroom located on the courthouse’s first floor.

Attorney J. Michael Murray represented the FSC, while attorney Anne Murphy represented the Justice Department.

A three-judge panel consisting of federal judges D. Brooks Smith, Anthony Scirica and Marjorie Rendell listened to arguments both in favor of and in opposition to 2257 for the 3rd U.S. Circuit Court of Appeals.

The Ceremonial Courtroom convened promptly at 9:30 a.m (EST), and attorney Murphy noted that it was “exactly one year ago today” — on December 9, 2014 — that Murphy and Murray addressed the same three judges in the same federal courthouse during an appellate hearing on 2257.

That hearing came after a June 2013 trial at the Byrne Courthouse in which U.S. District Judge Michael Baylson heard testimony from an abundance of witnesses for the FSC and the Justice Department on 2257 and 2257A; in July 2013, Baylson ruled in favor of the Justice Department, deciding that 2257 and 2257A were both constitutional. And the FSC immediately appealed Judge Baylson’s ruling.

Today, Murray and Murphy discussed the effect that the U.S. Supreme Court’s 2015 ruling in Reed v. the Town of Gilbert, Ariz., could have on 2257 and 2257A.

In Reed, the high court ruled that a local ordinance was unconstitutional because it imposed stricter limitations on public signs promoting religious services than it imposed on public signs promoting political messages.

The Good News Community Church, a small church in Gilbert, had placed signs around that city advertising its services — and the church was cited for violating the ordinance on two separate occasions. Believing the fines to be discriminatory, the church filed a lawsuit. And when the case went to the Supreme Court, all of the justices ruled in the church’s favor. With Justice Clarence Thomas writing the majority opinion, the Supreme Court was quite clear in asserting that the church’s religious signs could not be governed differently from political signs in Gilbert.

The ordinance in Gilbert, the Supreme Court ruled, was unconstitutional because it was not content-neutral. Gilbert, according to the high court, had no business making a distinction between different types of content in signs.

And based on Reed, the FSC argues, 2257 and 2257A are unconstitutional because they discriminate against sexually oriented speech specifically.

Murray was the first to address the panel of judges, telling Smith, Scirica and Rendell that with the Reed decision forbidding a “content-based legislation of religious signs,” 2257 and 2257A are equally unconstitutional because similarly, they single out sexual speech in a content-based fashion.

Rendell, examining the merits of 2257, asked Murray, “Do we have a content-based statute?” And Murray responded that yes, 2257 is “content-based” because it deals with “sexually explicit images” specifically. Murray added that 2257 is in no way a “content-neutral law” and that “when you apply strict scrutiny,” the statute does not hold up.

Murray noted that U.S. Supreme Court Justice Anthony Kennedy has stated emphatically that “content-based restrictions are unconstitutional.”

Murray went on to say that “there is a disconnect” between 2257 singling out sexually explicit speech and the U.S. Supreme Court, in Reed, ruling that singling out religious speech is unconstitutional.

Murray also told the panel of judges that 2257 is much too broad because it applies not only to commercial adult porn but also, to “private images” that are sexual in nature and not distributed for commercial purposes.

Sexually explicit private images, Murray said, are “ubiquitous now” because of modern digital technology. Murray pointed that under 2257, “You can be convicted of a felony. That’s a serious, serious matter for people who are confronted with this statute.”

Another argument Murray made in opposition to 2257 during his statements to the judges was that “there is no causal connection” between sexually explicit adult images and child pornography.

When the secondary-effects doctrine is applied, Murray said, there needs to be a “causal connection” — and sexually explicit material created by consenting adults, he said, is not creating or causing child pornography. There is no connection between the two, Murray said.

Later, Anne Murphy addressed the panel of judges — and arguing on behalf of the Justice Department, she asserted that the FSC is mixing apples and oranges by comparing the recordkeeping requirements of 2257 and the regulation of religious signs in the town of Gilbert, Ariz.

Murphy described the Supreme Court’s Reed ruling as a logical one, saying that laws affecting religious speech must be “content-neutral.” The signage law in Gilbert, Murphy said, “did not pass any form of scrutiny.” Murphy noted that under the Reed decision, “you can’t single out a particular group of signs.” But Murphy disagreed with Murphy’s contention that 2257 is not a “content-neutral” law.

Under 2257, Murphy said, the federal government is not discriminating against sexually explicit content but rather, is trying to make sure that all participants in that content are at least 18 years of age.

“Clearly, Congress was not targeting communicative conduct,” Murphy said of 2257. Murphy went on to say that “the government has a broader purpose” in defending 2257 because “without this law, there is a serious risk to minors.” Murphy said that one of the goals of 2257 is to “stop minors from passing themselves off as adults.”

When the judges were questioning Murray in order to clarify the Justice Department’s position on how the Reed decision affects 2257, Smith wondered if perhaps the case would need to be remanded to the district court.

During both Murray’s arguments and Murphy’s, the “secondary effects” doctrine was brought up. According to that doctrine, the presence of an adult business can have negative secondary effects — for example, crimes occurring near an adult bookstore, or property values decreasing because of the presence of a strip club, a swing club or some other type of brick-and-mortar adult business.

According to the secondary-effects doctrine, negative secondary effects can occur even though a brick-and-mortar adult business does not want them to occur. And today, Murphy said that “this really is a secondary effects case.”

The Supreme Court’s February 1986 ruling in City of Renton v. Playtime Theatres Inc. was also brought up during today’s hearing. In the Renton case, the high court examined the constitutionality of a law in Renton, Washington that prohibited adult theaters from operating within 1,000 feet of any resident zone, school, church or park. 

Opponents of the law argued that it was unconstitutional and anti-First Amendment, but the high court under Chief Justice Warren Burger found the law to be constitutional and ruled that municipalities can prohibit adult theaters from operating within certain areas.

The Supreme Court ruled that the law in question was a content-neutral restriction, not a violation of free speech. There were only two dissenters in that ruling: the late Justice William J. Brennan Jr. (who had been appointed by President Dwight D. Eisenhower to the Warren Court in 1956) and the late Thurgood Marshall (who had been appointed by President Lyndon B. Johnson in 1967 and was the Supreme Court’s first African-American justice).

The Renton decision was very much in keeping with the secondary-effects doctrine, which Justice Brennan was quite critical of and believed was detrimental to First Amendment freedoms.

And after the Renton decision, other municipalities imposed similar restrictions on brick-and-mortar adult businesses. When those restrictions were imposed, the municipalities would often use the secondary-effects argument and claim that if an adult bookstore or strip club was present in an area, the result could be something negative such as crime or lower property values.

This morning, Murphy told the judges, “It just can’t be true that Congress can ban child pornography” and not have a law making sure that participants in sexually explicit material “are not minors.”

Murphy went on to say of 2257, “The government is not trying to regulate speech…. It involves speech, but the content of that speech is not being regulated.” 2257, Murphy stressed, is not telling porn companies that they cannot produce sexually explicit material. Rather, it is helping them ascertain that the performers are legally old enough to participate in that material. 

Murphy asserted that “the government’s interest is in protecting minors from sexual exploitation…. What Congress is targeting is not the content of speech.” Rendell, however, expressed some sympathy for the FSC’s concerns, saying, “But it burdens speech.” 

After Murphy thanked the three judges for listening to her arguments, Murray once again addressed them. Murray asked them to “look at the words of” 2257. And those words, he reiterated, are not content-neutral and therefore, do not survive the Supreme Court’s Reed ruling. “If that isn’t content, I don’t what is,” Murray said of the material that requires strict recordkeeping under 2257.

The hearing ended after that, with the courtroom adjourned until January. Smith said that the judges would take the attorneys’ arguments under advisement.

Prior to today’s rehearing in May, 3rd Circuit judges Smith, Scirica and Rendell upheld the constitutionality of most of 2257. However, Smith, Scirica and Rendell did find warrantless inspections of adult businesses under 2257 to be problematic from a Fourth Amendment standpoint.

The 3rd Circuit’s decision struck down the recordkeeping inspection as unconstitutional under the Fourth Amendment, dealing a substantial blow to enforcement of the 2257 regulations.

Under the ruling, the government can no longer appear at the doors of Free Speech Coalition’s members without a search warrant and demand entry to inspect their 2257 records without cause.

The FSC publicly spoke in favor of that 3rd Circuit decision; nonetheless, the FSC would like to see 2257 overturned altogether and have continued to fight the statute.

During the 2257-related trial that took place in Philadelphia two years ago in June 2013, District Judge Baylson listened to an abundance of testimony both in favor of and in opposition to 2257.

The FSC presented a long list of witnesses who were critical of 2257, including adult film star Nina Hartley (who testified that she found the recordkeeping requirements of 2257 to be costly and burdensome), attorney Jeffrey Douglas (who has represented many clients in the adult industry), sexologist Carol Queen, erotic photographer Barbara Nitke and Dr. Betty Dodson (a major figure in the so-called “sex-positive feminist movement”).

Those who testified on behalf of the Justice Department included anti-porn feminist Gail Dines (who has written extensively about her opposition to adult entertainment), anti-child pornography researcher Janis Wolak and anti-child pornography researcher Janis Wolak.

With the testimony of Dines and Wolak, attorneys for the Justice Department set out to demonstrate that, for law enforcement, 2257 was a valuable tool in combating child pornography. Dines, during her testimony, discussed the “teen porn” genre of adult entertainment and was critical of porn producers’ use of the word “teen”; however, Murray said during the trial that the term “teen porn” is really just a figure of speech because adult companies carefully screen participants in porn in order to make certain that they are old enough to appear in the material legally. 2257, Murray argued during the trial, was unnecessary because adult companies had a long history of aggressive age verification of performers.

Journalist Tom Hymes was another witness for the FSC. Hymes testified that because of 2257, he was afraid to post explicit images on his website, the Daily Babylon. Although Hymes’ site was not a porn site per se, he testified, he believed that it was subject to 2257’s recordkeeping requirements — and he believed that 2257 was having a chilling effect on his free speech. 

One of the issues brought up during that trial was the subject of “sexting” — that is, sexually explicit images being transmitted digitally via mobile/wireless devices. Murray, during the trial, argued that because “sexting” had become so common during the digital era, 2257 posed legal concerns for the many Americans who were transmitting personal, sexually explicit images digitally.

Those Americans, Murray argued during the trial, were subject to 2257 recordkeeping requirements even though they were not transmitting them for commercial purposes or selling them in any way. Expecting those Americans to be 2257-compliant, Murray said, was unrealistic. And he revisited that argument today when he brought up how “ubiquitous” non-commercial sexual images continue to be in 2015.

On June 14, 2013, Baylson shared his thoughts on how he viewed the testimony. Baylson was somewhat critical of Dines’ testimony, saying, “I thought some of her statements were valuable. I thought she was very biased against the porn industry.”

But he was also somewhat critical of parts of Hartley’s testimony, saying that he put a “low weight” on the 2257-related expenses that the adult film star had incurred.

Baylson, that day, indicated that he did not think of those 2257-related expenses as an attack on Hartley’s constitutional rights, but instead, as part of the cost of doing business.

Baylson also said that “compared to the dangers of child pornography,” he didn’t think that “recordkeeping expenses” were “unconstitutional” for “people who are in the adult industry to make money.” On June 17, 2013 (the eighth and final day of the trial), attorneys for the FSC and the Justice Department gave their closing arguments.

 Baylson’s comments on June 14, 2013, indicated that even though he admired the time and effort that the FSC had invested in the case, he was leaning in favor of the Justice Department’s point of view — and in July 2013, he did, in fact, rule in the Justice Department’s favor. But that was not the end of the FSC’s battle against 2257. And now, the FSC is hoping that the Supreme Court’s Reed decision will work to its advantage and be a game-changer in the Free Speech Coalition v. Attorney General.

Writing for XBIZ last month, Chicago-based First Amendent attorney J.D. Obenberger discussed the possible effects that the Reed decision could have on 2257 as well as on the Supreme Court’s 1986 ruling in Renton. Obenberger wrote that the Reed ruling “seems comparable to an earthquake” and went on to say “Reed seems to have changed the landscape entirely. And that change in landscape does affect the future of all of the many laws at every level that aim to regulate the conduct of different kinds of adult businesses.

The Supreme Court, in Reed, noted that the common sense meaning of the phrase ‘content-based’ requires a court to consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys. Section 2257 seems, inescapably, to do that by its absorption of definitions of what is ‘sexually explicit’ expression.”

It remains to be seen what actions the 3rd Circuit will take in the Free Speech Coalition v. Attorney General, and possibly, the case could be remanded to the district court – in which case, another trial is not out of the realm of possibility. And if the courts continue to uphold 2257, there is a possibility that eventually, the Free Speech Coalition v. Attorney General could be taken all the way to the Supreme Court.

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