2257 Decision Reversed on Appeal in Third District Court

The Free Speech Coalition (FSC) received news this morning that it won the appeal to the US Third Circuit Court of Appeals, overturning an earlier District Court decision to dismiss the suit challenging the constitutionality of 18 U.S.C. § 2257 and 2257a. This allows the lawsuit to continue in the District Court.

The suit was originally filed by FSC and 14 other plaintiffs.

This decision represents a significant victory for FSC, the other plaintiffs and their attorneys, in opposing the regulations governing age verification record-keeping for adult producers and adult performers.

"FSC would like to thank our attorneys Mike Murray and Lorraine Baumgardner for their incredible work on this case thus far," FSC Executive Director Diane Duke. "This decision is critical in three ways - it was unanimous, it supports the arguments that FSC has made all along and it supports the 4th amendment question included in our most recent challenge to 2257. This is a very important next step in our work to eliminate the burden from the adult industry of this onerous regulation."

Attorneys Murray and Baumgardner represented FSC and the other plaintiffs in the suit, which challenged 2257 and 2257a on grounds that the regulations violate the First Amendment rights of adult producers and threaten the privacy rights of adult performers.

"We are thrilled today with the victory today, in the Third Circuit, reversing the District Court's decision dismissing constitutional challenges to 2257 and 2257a," said Murray. "We're excited the Third Circuit agreed the First and Fourth Amendment claims are worthy and we're looking forward to returning to District Court, where we'll be in a position to put on evidence to demonstrate the constitutional infirmities of this burdensome statutory scheme."

Judge Rendell's concurring opinion hits the nail on the head in several areas, and makes some of the same observations about the weaknesses of 2257 that a lot of people who are subject to the regulations have been pointing out for years:

Neither the District Court nor the majority points to anything - in the Pornography Report, the legislative history, or elsewhere - that asserts that, or explains how, these statutes provide an effective response to the problems the Pornography Report and Congress diagnosed. Moreover, although section 2257 has been on the books for almost 25 years, the record contains no evidence as to producers' or the government's experience under the statute, and, therefore, no means of assessing whether the requirements actually have had any deterrent or preventive effect.

In the absence of such evidence, it is easy to think of reasons the statutes might not accomplish their desired result. For example, given the substantial federal and state criminal penalties for creating and distributing child pornography... and the Pornography Report’s finding that "[s]exual exploitation of children has retreated to the shadows," it is hard to fathom that the statutes' recordkeeping requirements would make anyone who was already inclined to engage in such activities change his behavior. An unscrupulous producer who seeks to distribute images using underaged (as opposed to merely young-looking) performers could falsify his records, and a producer who operates underground is not likely to follow the recordkeeping requirements at all. Similarly, a child determined to pass herself off as an adult could easily provide false identification to the producer.

Regarding the warrantless inspections, Judge Rendell had the following to say:

More fundamentally, inspections of the required records could be conducted using warrants with no greater difficulty, and with no different results, than without. Warrants could issue on cause to believe that the producer is using child subjects in violation of the law based on appearance, as is always the case, or as part of "an administrative plan containing specific neutral criteria." ...Tellingly, neither the government nor the District Court has explained why the government's goal of ensuring compliance and deterring the fabrication of records would not be served by warrants issued on short notice as part of a regular, administrative enforcement scheme.