Justice Department Seeks Rehearing of 2257 Decision

Jul 26, 2016 12:06 PM PST

PHILADELPHIA — The Justice Department yesterday filed a brief with the 3rd U.S. Circuit Court of Appeals, seeking a rehearing over the recent appellate ruling involving 18 U.S.C. §§ 2257 and 2257A, the federal statutes that govern performer record-keeping for sexually explicit content.  

In June, in a big victory for the plaintiffs — adult entertainment trade group the Free Speech Coalition and various performers and industry stakeholders — the 3rd Circuit vacated and remanded a lower court’s July 2013 ruling that held that record-keeping for adult producers was constitutional.

The win for the plaintiffs, and consequently all adult entertainment producers, was hailed by many at the time as one of the greatest adult industry victories in decades.

The  3rd Circuit ruling, left intact, would sent the case back to U.S. District Judge Michael Baylson’s courtroom in Philadelphia for reconsideration.

That reconsideration would centrally focus on whether the statutes withstand “strict scrutiny,” which presumes a law to be invalid unless the government can prove the law's constitutionality and demonstrate a compelling governmental interest in keeping it.

Yesterday, the Justice Department filed a 21-page brief seeking a panel rehearing and rehearing “en banc,” or before the entire bench. Many of its points it made were a rehashing of the case.

The Justice Department said that its petition should be granted because the 3rd Circuit panel’s holding that the record-keeping statutes are subject to strict scrutiny conflicts with two other federal appeals courts and that is contrary to the U.S. Supreme Court’s decision in City of Renton v. Playtime Theatres Inc.

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.”

But the 3rd Circuit court in June focused on a new U.S. Supreme Court case to guide its decision — Reed v. Town of Gilbert.

“In light of Reed, we determine that the statutes are content based, and therefore require strict scrutiny review under the First Amendment,” the 3rd Circuit panel said in June.

In its petition yesterday, the Justice Department, however, said that nothing in the Supreme Court’s opinion in Reed indicates that it was intended to have “the sweeping effect given to it by the panel majority.”

“The court in Reed purported to apply longstanding precedents, and it left wholly untouched (and, indeed, unmentioned) the secondary-effects line of cases,” the Justice Department said in the petition. “Even if there is tension between Renton’s secondary-effects doctrine and the content-neutrality discussion in Reed, that tension provides no basis for concluding that the Reed court overruled Renton by implication or limited it to its facts. 

Renton’s secondary-effects rule more directly applies to 18 U.S.C. §§ 2257 and 2257A than Reed, and Renton requires the application of ‘intermediate scrutiny.’”

To pass the intermediate scrutiny, the record-keeping statutes must further an important government interest by means that are substantially related to that interest.

“The panel erred in holding otherwise, and the full court should correct that error,” the Justice Department said.

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