YNOT – U.S. District Judge Michael Baylson denied the Free Speech Coalition’s motion for reconsideration of his previous decision to throw out the adult industry trade group’s challenge to U.S. labeling and recordkeeping laws.In late July, Baylson dismissed Free Speech Coalition et al v. [Attorney General] Eric Holder at the government’s request. At the time, he called 18 USC §2257 and §2257A, plus associated regulations, “a reliable mechanism for verifying the ages of the performers appearing in … sexually explicit depictions, to help ensure that children are not being used in their production.”
On Aug. 24, FSC filed a Rule 59(e) motion requesting Baylson reconsider underlying constitutional issues FSC suggested he failed to take into account during the original proceedings.
“Under the First Amendment, no recordkeeping requirement derived from the government’s interest in suppressing child pornography may substantially burden the circulation of expression which is not child pornography,” the motion noted.
When Baylson denied FSC Rule 59(e) motion, he set up the requisite legal framework for FSC to file an appeal, which the organization plans to do before the deadline: the first week in November.
“Although disappointing, to no one’s great surprise Federal District Court Judge Baylson denied the Rule 59 [motion] filed on behalf of the Free Speech Coalition and the other plaintiffs,” FSC President and attorney Jeffrey Douglas said. “Focus of our distinguished attorneys Michael Murray and Lorraine Baumgartner now will turn to an appeal to the Third Circuit Court of Appeals.
“Although the Rule 59 motion was denied, it served the designed purpose of highlighting certain key issues for the appeal,” Douglas added. “We express great appreciation for his volunteer effort by FSC board member and Legal Committee Chair Reed Lee in contributing to the draft of the Rule 59.”
FSC has fought 2257, 2257A and associated enforcement regulations since they debuted in December 2008. According to the trade group and various adult industry attorneys, the regulations impose a number of unconstitutional burdens upon producers of legal adult content. The regs require producers and distributors to maintain extensive documentation about performers’ identities and conspicuously label their products with the physical location of those records. Many of the “et al” among the plaintiffs in the most recent case are individual producers who work out of their homes, and the labeling requirement not only invades their privacy but also allows duly authorized federal agents to inspect the records without notice or warrant and to seize even unrelated material under the auspices of plain-sight suspicion. Warrantless searches are bad enough, Murray said, but that federal agents can enter an individual’s home and seize materials on a whim represents a clear violation of the founding fathers’ intent to safeguard the sanctity of private residences.
In addition, individual artists, photographers, journalists and performers are hampered in their pursuit of employment by the regulations’ requirement that they make themselves and their records available for inspection at least 20 hours per week. Murray said some plaintiffs must travel extensively for work, and the 20-hour requirement forces them to choose between a job and federal law. Some have curtailed professional speech because taking a job would mean they would not be available for the requisite 20 hours.
Some plaintiffs have censored their work because they are unwilling or unable to keep records at all, or because their clients (in the case of sex educators) value their privacy and refuse to provide copies of personally identifiable documents proving their majority. That effect of the laws and their regulations qualifies as prior restraint on free speech, which courts consistently have ruled unconstitutional, Murray said.
In addition, the laws and their regulations impose an unfair financial burden on small producers, who may not possess the time to maintain the records themselves or the funds to hire someone else to do the work.
Some educational materials, including websites and books, have had to be scrapped because no identification documents were available for images produced before the laws’ effective date. Although explicit images that predate the laws may be published in the absence of identification, producers feared combining older images with images subject to the laws would put the resulting publication in violation of 2257.
More information about FSC’s stance on 2257 and related issues may be found at the organization’s website.
