Back in May, I wrote a cautionary post about the legal-wrangling equivalent of dancing in the end zone before the instant-replay review of your touchdown has been completed.
At the time, part of my concern was over the still-unfinished business at the circuit court level — because the court’s request that the two sides to negotiate an agreement on a revised set of 2257 regulations was pending. The rest of my concern was rooted in the assumption that whatever the two sides might agree upon, there would still be portions of the court’s decision which one side or the other would want to appeal.
The negotiations between the FSC and the government didn’t produce any sort of agreement, of course, making an already likely appeal of the court’s decision a virtual certainty. And sure enough, since U.S. District Judge Michael M. Baylson issued his memorandum opinion on September 24, both the Free Speech Coalition and the DOJ have filed notices of appeal in the case. The DOJ filed its notice on October 1, the FSC filed its cross-appeal the following day.
Neither party has filed anything beyond the initial notice of appeal, so there’s not much to go on yet in terms of evaluating their arguments. For now, the important thing to understand is the reason why we have two appeals pending before the Third Circuit in the case, as that may be a source of confusion for those who haven’t followed the case closely.
In short, neither side got what it wanted from Judge Baylson. While it was understandable why the FSC considered both Baylson’s order issued in May and his final decree significant victories for the adult industry, portions of the judge’s ruling went against the FSC, as well.
For example, Baylson found the plaintiffs had “failed to meet their burden on their First Amendment facial overbreadth claim” and dismissed some of the as-applied challenges to 2257 and 2257A because he found the FSC and American Society of Media Photographers lacked standing with respect to those claims. On the government’s side of things, the reason for the appeal is even clearer; Baylson’s decision rendered portions of the law and related regulations unconstitutional and unenforceable.
While we do know why each side has appealed, what we don’t yet know is the contour and content of the arguments they intend to make in those appeals. When that becomes clear, YNOT will ask attorneys observing the case for feedback on and analysis of those arguments – and maybe even to hazard a guess on the outcome of the appeals, should they feel bold enough to offer such.
The other case headed for appellate court, of course, is the challenge to FOSTA filed by the Woodhull Freedom Foundation and their co-plaintiffs. Woodhull’s notice of appeal was filed yesterday, a development which, like the appeals in the 2257 case, came as no great surprise.
After Woodhull’s complaint was dismissed by U.S District Court Judge Richard J. Leon on September 24, attorney Larry Walters, part of the legal team representing the plaintiffs, told YNOT that the plaintiffs “understood that the district court decision would only be a step in the long process of challenging the law.”
“We believe that the plaintiffs established standing to pursue a pre-enforcement challenge to FOSTA under the standards applicable in First Amendment cases,” Walters said at the time. “Our clients are evaluating the appropriate next steps in pursuing the litigation.”
Obviously, that next step has been taken with the filing of the notice of appeal – and the plaintiffs sound every bit as confident in their case as they were when it was first filed in July.
“FOSTA directly threatens the right to sexual freedom and reduces the amount of life-saving information that can be shared online,” Ricci Levy, Woodhull’s President and CEO said in a statement issued yesterday. “This law is a clear First Amendment violation hiding under the false assertion that by censoring the internet, prostitution and human trafficking will be stopped. We’re in this for the long haul and you can count on us to continue to fight illogical and unconstitutional laws, like FOSTA, which hamper our mission and restrict free expression.”
As with the FSC and DOJ’s appeals in the 2257 case, no briefs have been filed and no hearing dates have been set in the Woodhull challenge to FOSTA, making it hard to assess the chances of the appeal being successful. Unlike the FSC case, only one appeal has been filed in the Woodhull case, because the early dismissal of Woodhull’s lawsuit meant there were no rulings in the case which were adverse to the government’s position.
YNOT will continue to follow both these important cases and provide updates as they progress through the appellate process.
Meade and Prettyman Courthouse photo by AgnosticPreachersKid via Wikimedia Commons