PHILADELPHIA – Adult industry trade association Free Speech Coalition and other plaintiffs in the federal lawsuit Free Speech Coalition v Holder filed a notice of appeal Friday, indicating the group intends to ask a U.S. court of appeals to overturn a lower court’s ruling that the federal labeling and recordkeeping statute pertaining to the adult entertainment industry is constitutionally valid.
“Notice is hereby given that Plaintiffs Free Speech Coalition, Inc.; American Society of Media Photographers, Inc.; Thomas Hymes; Townsend Enterprises, Inc. d.b.a. Sinclair Institute; Barbara Alper; Carol Queen; Barbara Nitke; David Steinberg; Marie L. Levine a.k.a. Nina Hartley; Dave Levingston; Betty Dodson; and Carlin Ross, hereby appeal to the United States Court of Appeals for the Third Circuit, from the final judgment and order entered in this action on July 18, 2013 (Doc. 229, 230) and from any and all orders made final by the aforementioned judgment,” states the Notice of Appeal, in its entirety.
The ruling at issue, delivered by Pennsylvania-based U.S. District Judge Michael M. Baylson, declared 18 USC §2257 constitutional except in instances where documents required by the law are maintained within a producer’s home and the government fails to warn the producer of an impending inspection. Baylson determined that provision violates Fourth Amendment guarantees against unlawful search and seizure. Nevertheless, based on his observation that the federal government hasn’t actively prosecuted under 2257 since 2008, Baylson declined to issue even a partial injunction against enforcement.
“…[P]laintiffs do not face a realistic threat of ‘irreparable harm’ — due to an inspection — at any point in the foreseeable future,” Baylson wrote in the July 18 decision in which he called the 2257 inspection program “moribund.” “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.”
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 FSC has been challenging the laws in court since 2005. So far, the appellate court for the Sixth Circuit, at different times, has ruled the recordkeeping laws both unconstitutional and constitutional. The U.S. Supreme Court declined to hear an appeal of the Sixth Circuit’s most recent ruling.
The FSC’s current lawsuit challenges 2257 on First Amendment and Fourth Amendment grounds.
