FSC's Opening Brief Challenges 2257's 1st Amendment Issues

Feb 24, 2017 2:44 PM PST

PHILADELPHIA — The Free Speech Coalition today filed its opening brief in support of a motion for entry of judgment declaring 18 U.S.C. §§ 2257 and 2257A and their implementing regulations unconstitutional under the First Amendment.

The FSC, coming off a win in January in regards to its Fourth Amendment challenge that protected against unreasonable searches and seizures, has asked a federal judge to issue a permanent injunction enjoining the statutes’ enforcement.

FSC attorneys J. Michael Murray and Lorraine Baumgardner, in their brief to the court, said that the regs should be found unconstitutional because they are overbroad and that the statutes don’t survive 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.

The FSC attorneys emphasized that the government has failed to prove that adult filmmakers ever used minors in their production since was adopted in 1988 and later amended by Congress to cure defects.

While regulations implementing the statute did not take effect until 2005, the FSC attorneys said, the adult industry’s practice of verifying the ages of its performers was in place long before the statutes began to be enforced.

“The statutes’ enforcement history — or more accurately, absence of an enforcement history — underscores the nonexistence of the problem in commercially produced movies,” the FSC said.

“Not a single prosecution has been brought under 18 U.S.C. § 2257A [pertaining to ‘simulated sexually explicit conduct’ and ‘lascivious exhibition of the genitals or pubic area of any person’],” the FSC attorneys wrote in the brief. “As for 18 U.S.C. § 2257, between 2002 and 2015, the number of prosecutions brought for violating its provisions total nine.”

The FSC backed up the stats by including an exhibit of the Justice Department’s own data in their report to Congress in April. The data was for the years 2011-2015.

“In addition to failing to demonstrate the actual problem the statutes were enacted to address, the government has failed to offer evidence establishing ‘a direct causal link’ between the production of adult movies and the production of child pornography,” the FSC attorneys noted, citing the federal case Brown v. Entertainment Merchants Association.

“The court in Entertainment Merchants determined the government’s evidence had demonstrated ‘at best some correlation’ between violent video games and harmful effects on children, which was not enough to carry its burden. Here, the evidence fails to make even that showing.

“The unrebutted evidence produced by plaintiffs demonstrated that adult filmmakers and photographers creating sexually explicit expression commercially simply do not use, and never have used, underage performers in their work.”

The FSC attorneys noted that the current regulations are unreasonably restrictive to business owners and that there are alternatives, including current state and federal laws imposing substantial criminal penalties for creating and distributing child porn.

They also said another option could include the current certification procedure of 18 U.S.C. § 2257A, which permits mainstream producers who, like adult film producers, maintain identification documents as a matter of industry practice, to certify to the attorney general that they collect and maintain records containing their performers’ names, addresses, and dates of birth, pursuant to industry standards in lieu of complying with the statutes’ regime.

“This certification procedure is a perfect example of a more targeted regulation that would serve the government’s interest in preventing the appearance of minors in commercially produced sexually explicit expression — allowing commercial producers to satisfy recordkeeping obligations by certifying they maintain records establishing their performers’ ages, which, the evidence established, they do,” FSC counsel said.

Pre-existing industry standards and intellectual property laws are also effective alternatives, as well as an age-verification law limited to persons who might reasonably appear to be underage, the FSC attorneys said.

A law imposing recordkeeping requirements only on commercial producers also would be a less restrictive means to accomplish the government’s interest in protecting the appearance of underage performers in sexually explicit expression, they said.

“Private explicit photos or videos created by husbands and wives or adult partners as part of their sexual relationship do not present a risk to minors,” FSC counsel said.

Further, the FSC attorneys said that an alternative limited to primary producers — as opposed to “secondary producers” who simply publish or reproduce it — would be a less restrictive alternative.

FSC counsel said the indexing and cross-referencing demands of the regulations creates a nightmare for secondary producers who are basically wholesalers. 

“If a performer appears in 30 different films, which come from 10 different studios, the wholesaler has to cross-reference multiple studios. Add to that the challenge of obtaining separate records for the thousands of video covers that appear on a wholesaler’s website,” FSC attorneys wrote.

“While producers maintain a file of records for all the performers who appear in a film, they do not maintain separate records for the performers depicted only on the covers of the videos. So, they will provide records of all the performers in the film to the wholesaler. The problem is, the statutes require the wholesaler to segregate the requisite records from all other records.

“Requiring secondary producers, who have no role in creating the expression and thus no control in preventing the use of minors in its production, to jump through these hoops is far from the least restrictive means of advancing the government’s interest in protecting children.”

The statutes encroach upon a substantial amount of constitutionally protected expression and are overbroad, the FSC said, noting that a recordkeeping law that applies only to youthful looking adults who might reasonably appear to be minors or adults under a certain age — who are nonetheless well beyond the age of 29 — “leaves constitutionally protected expression depicting mature adults unburdened.”

“A recordkeeping law that applies only to commercial producers leaves private expression unburdened — unlike the statutes here that apply to intimate, personal expression exchanged by lovers,” the FSC attorneys wrote.

“Compared to any of these less restrictive alternatives, the statutes encroach upon an intolerable amount of protected expression. They are, therefore, unconstitutionally overbroad.”           

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