3rd Circuit Makes 2257 Judgment Official

Aug 22, 2016 10:23 AM PST

PHILADELPHIA — The 3rd Circuit on Friday made official its judgment against the Justice Department in its petition for a rehearing over a decision involving 18 U.S.C. §§2257 and 2257A.

The case, which challenges the federal statutes that govern performer record-keeping for sexually explicit content, now moves back to U.S. District Judge Michael Baylson’s courtroom in Philadelphia, barring a U.S. Supreme Court review.

The Justice Department has up until Nov. 9 to file a petition for writ of certiorari to ask the high court to review the 3rd Circuit’s decision. It could have opted to seek a stay of the 3rd Circuit ruling within seven days but did not file a motion to do so.

Adult entertainment trade group the Free Speech Coalition and various performers and industry stakeholders sued the government over the laws, holding that the inspection provisions of the statutes are facially unconstitutional.

The initial win at the 3rd Circuit for the plaintiffs in June, and consequently all adult entertainment producers, was hailed as one of the greatest adult industry legal victories in decades.

In June, the 3rd Circuit vacated and remanded a lower court’s July 2013 ruling that held that performer record-keeping for adult entertainment producers are constitutional.

The 3rd Circuit, in the judgment, held that the inspection provisions of the statutes are facially unconstitutional under the 4th Amendment.

With the ruling, most of 2257 became unenforceable due to its violation of the 4th Amendment on unreasonable seizures.

Barring a high court review, the case now goes back to the trial court over the case’s 1st Amendment claims.

Industry attorney Lawrence Walters, who is not a party to the case, said that the “the government still has some time to decide whether to seek review of the 3rd Circuit’s opinion, from the U.S. Supreme Court.”

“Until the decision is made, things will move forward at the trial court level, which now has jurisdiction over the case,” he told XBIZ.

Allan Gelbard, another industry attorney, observed and called the judgment issued on Friday "another positive move."

"I suppose the government may be thinking that the trial judge is more likely to give them yet another bite at the apple, so the fat lady hasn’t sung just yet," Gelbard told XBIZ. "But perhaps he’s tired of being reversed by the 3rd Circuit and, this time, he finds the entire statute unconstitutional. Fingers crossed."

Industry attorney, J.D. Obenberger, told XBIZ that the remand is about the rest of the requirements of §2257, data acquisition, records-keeping, organization and indexing and mandatory notices.

“The inspection provisions of §2257 were declared unconstitutional on their face — and so, there is nothing left for Judge Baylson to decide about them,” said Obenberger, who also is not a party to the suit.

“Because the 3rd Circuit has determined the rest of §2257's provisions to be content-based, they can only survive if they withstand strict scrutiny,” Obenberger said. “That's a question that involves taking facts and evaluating facts and finding facts — and applying the appropriate legal standard to them.

“It's a task appropriate to trial courts rather than appellate courts to find facts. That's what will happen next,” Obenberger said.

“The continued survival of §2257 faces a very stiff test based on the 3rd Circuit's understanding of the Reed v. Town of Gilbert case, and the odds seem to be against §2257.

In any event, Obenberger said, nothing has been lost to either party by this remand, and all of the issues most recently decided, and those decisions to come, still have the potential to be argued and decided again at the U.S. Supreme Court.

“Before this case ever gets there, other cases waiting in the wings will test the limits of Reed v. Town of Gilbert, and give the Supreme Court a chance to articulate whether it really meant the decision to be as broad as it appears, and in fact whether that decision permits legislation that take the nature of adult entertainment into account is setting special rules in licensing, zoning, and other area, and sets different rules for adult entertainment,” Obenberger said.

“We should have a hint about those issues before the FSC case gets to the Supreme Court, if it makes it that far.”

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