PHILADELPHIA – On Monday afternoon, the Free Speech Coalition filed its latest memorandum in Free Speech Coalition v. Sessions, the adult entertainment industry trade organization’s long-running challenge to the constitutionality of the recordkeeping requirements delineated under 18 U.S.C. §2257 and §2257A.

The memorandum was entered by four attorneys representing the plaintiffs in the case, J. Michael Murray and Lorraine R. Baumgardner (pictured above) of the law firm Berkman, Gordon, Murray & DeVan, and Kevin E. Raphael and J. Peter Shindel of Pietragallo, Gordon, Alfano, Bosick & Raspanti.

In the memorandum, the FSC took up the subject of a draft entry judgment proposed by the court, which would include “declaratory and injunctive relief in favor of the Plaintiffs on their as-applied challenges under the First Amendment but limits injunctive relief to the individual plaintiffs.”

In a letter which accompanied the draft order, U.S. District Judge Michael Baylson wrote: “Although I believe that the order must include a final judgment in favor of the prevailing party on each issue, I tentatively believe that the fact that the organizational Plaintiffs were dismissed for lack of standing and the Plaintiffs are only receiving relief on their ‘as-applied’ claims, requires me to observe the Third Circuit’s decision in Belitskus v. Pizzingrilli… and may not allow a complete injunction against the Defendant broader than the named individual Plaintiffs.”

The court asked the plaintiffs to respond on the issue, and the memorandum filed Monday is the response the court requested.

In its response, the FSC noted that “confusion exists about the differences (or lack thereof) between facial, as-applied, and overbreadth challenges in varying contexts under the First Amendment” – and further argued that “under strict scrutiny, there is little, if any, difference between an as-applied and facial challenge.”

Quoting from a Harvard Law Review article by Prof. Richard H. Fallon Jr., the FSC noted that to “raise a constitutional objection to a statute, a litigant must always assert that the statute’s application to her case violates the Constitution.”

“But when holding that a statute cannot be enforced against a particular litigant a court will typically apply a general norm or test and, in doing so, may engage in reasoning that marks the statute as unenforceable in its totality,” the quotation continues. “In a practical sense, doctrinal tests of constitutional validity can thus produce what are effectively facial challenges.”

As the FSC observed in its memorandum, the Supreme Court and other courts have since endorsed Fallon’s analysis. In Citizens United v. F.E.C., the Supreme Court wrote that “the distinction between facial and as-applied challenges is not so well-defined,” and itself quoted Fallon’s article in saying “once a case is brought, no general categorical line bars a court from making broader pronouncements of invalidity in properly ‘as-applied’ cases.”

In its memorandum, the FSC argued a “test” like the one described in Fallon’s article should be applied in this case – and once it has been so applied, the court should conclude the portions of 2257 which have been deemed to fail strict scrutiny must be enjoined, not just with respect to the plaintiffs, but in their entirety.

The FSC observed that in United States v. Playboy Entertainment Group, another case in which the district court found a statute was unconstitutional as applied to the plaintiff, but “attempted to repair the statute by implementing the less restrictive alternative by judicial decree,” rather than enjoin the statute in its entirety.

When the matter reached the Supreme Court, however, the high court “took issue with the relief the district court had fashioned,” as the FSC phrased it in the memorandum.

“[T]o the extent the District Court erred, it was only in attempting to implement the less restrictive alternative through judicial decree by requiring Playboy to provide for expanded notice in its cable service contracts,” the Court wrote in U.S. v Playboy. “The appropriate remedy was not to repair the statute, it was to enjoin the speech restriction. Given the existence of a less restrictive means, if the Legislature wished to improve its statute, perhaps in the process giving careful consideration to other alternatives, it then could do so.”

As the FSC sees things, “the same relief is warranted” in the case now before Judge Baylson.

“Applying strict scrutiny, this Court analyzed whether the Government had met its burden of showing that the statutes and implementing regulations were narrowly tailored to advance a compelling interest and were the least restrictive means of doing so,” the FSC wrote in its memorandum. “The answers to those inquiries did not depend upon circumstances and facts that were unique to the Plaintiffs’ sexually explicit speech. This Court concluded that the Government had failed to satisfy its burdens under strict scrutiny and that the relevant portions of the statutes and regulations were, therefore, unconstitutional under the First Amendment.

“Consequently, those unconstitutional provisions are unenforceable under the First Amendment – not because of their particular application to the Plaintiffs’ specific expression but because the Government has failed to satisfy the constitutional demands it must meet to justify the content-based regulations at issue,” the FSC continued. “Having found as such, the Court should declare those portions of the law unconstitutional under the First Amendment and enjoin Defendant from enforcing them.”

Finally, the memorandum also addressed the status of the discussions between the parties on submitting to the court a “new proposed regulation for labeling material subject to the statutes,” as requested by the court. As the FSC explained, the government indicated that under the Administrative Procedure Act (“APA”) it is “within the Department of Justice’s province, not the Court’s, to promulgate new regulations and that the APA did not allow the Department to submit proposed regulations to the Court, or for the Court to require their submission.”

The FSC added that while it did make “an effort to comply with the Court’s directive” by providing “an outline of a new simple, straightforward labeling regulation,” but “in light of the Government’s position that the APA does not permit it to submit a proposed regulation to the Court, Plaintiffs contend the best option is to defer that issue until after any appeals are concluded.”