PHILADELPHIA – A federal district judge on Thursday ruled 18 U.S.C. §2257 and §2257A — the federal labeling and recordkeeping legislation to which the adult entertainment industry is subject — do not violate the First Amendment to the U.S. Constitution. He also found the laws constitutional under the Fourth Amendment, except with regard to one narrow situation.
In a terse, two-sentence decision regarding Free Speech Coalition v. Holder, Judge Michael M. Baylson found 2257 violates Fourth Amendment protections against unlawful search and seizure only in cases where documents required by the laws are maintained within a producer’s home and the government fails to warn the producer of an impending inspection.
“…[T]he failure of the regulations to require receipt of advance notice for inspections at bona fide residences of producers violates the Fourth Amendment,” Baylson wrote.
Nevertheless, he declined to issue even a partial injunction against enforcement of the laws.
Sections 2257 and 2257A and the associated enforcement regulations are intended to ensure minors are not employed in the making of sexually explicit materials. The original version of 2257 dates to 1988; 2257A, enacted in 2004, expanded not only the definition of sexually explicit material to cover the internet and other digital media, but also significantly broadened the definitions of primary and secondary producers. Since a 2007 addendum, the laws also encompass simulated sexual activity.
The regulations for enforcing the laws specify the types of age-verification documentation that must be kept, who must keep the records, how they must be kept, and when and by whom the records may be inspected. Penalties for even minor infractions can be severe: from two to five years in prison and/or steep fines.
Adult industry trade association Free Speech Coalition began challenging the recordkeeping and labeling laws in 2005. In 2007, the U.S. Court of Appeals for the Sixth Circuit first ruled the statutes unconstitutional, saying they were overly broad and facially invalid. The Sixth Circuit reversed itself in 2009 and upheld the constitutionality of the laws. The U.S. Supreme Court subsequently declined to hear an appeal.
The FSC regrouped and approached the legal challenges from another direction, only to have Judge Baylson, in 2010, dismiss the lawsuit based on the Supreme Court’s earlier rejection of the previous case. The FSC appealed to the Court of Appeals for the Third Circuit. In 2012, the Third Circuit overturned Baylson’s dismissal and remanded the case for consideration.
Baylson’s Thursday decision represents the culmination of that process.
The bulk of the 74-page Memorandum of Law accompanying Baylson’s Thursday ruling was devoted to detailing the procedural history of the case, reviewing the testimony of 21 witnesses and discussing the relevance of more than 300 exhibits. In the end, Baylson’s conclusions seemed based more on the enforcement habits of the current Department of Justice than on matters of law.
Even though he agreed with the FSC that warrantless searches of content producers’ residences violates constitutional protections, Baylson wrote in the Memorandum:
[QUOTE]…[T]he equitable remedy of an injunction is not warranted at this time. The evidence shows the government has not conducted a Section 2257 inspection since 2007. Rather, the FBI dismantled the inspections program in early 2008, and there has been no intent or effort to revive it. It is moribund.
As a result, plaintiffs do not face a realistic threat of “irreparable harm” – due to an inspection – at any point in the foreseeable future. A judge must take a deep breath before enjoining the nation’s top law enforcement officer from doing something that the Department of Justice has shown no interest in doing for the last six years.
Under these circumstances, the court believes it would be an abuse of discretion to enter an injunction against the attorney general.
[/QUOTE]The FSC has not said whether it will appeal the judge’s decision.
