PHILADELPHIA – U.S. laws that require producers of sexually explicit content, or content that simulates explicit sexuality, to keep records proving the majority of their subjects violate the search and seizure clauses of the Constitution, according to a new federal lawsuit to be filed Wednesday on behalf of 15 plaintiffs from the mainstream and adult entertainment.The Fourth Amendment challenge is a new approach for opponents of 18 U.S.C. §2257 and §2257a, the federal recordkeeping and labeling acts. So is the group of challengers. Led by the adult industry trade organization Free Speech Coalition, the collection of plaintiffs also includes journalists, a photojournalist trade organization, artists and sex educators in addition to studios and performers who work in adult entertainment.
“We have a very, very substantial constitutional attack,” plaintiffs’ attorney J. Michael Murray told reporters during a Tuesday evening teleconference, adding that First Amendment and Fifth Amendment challenges are part of the suit, as well.
The lawsuit will be filed in the U.S. District Court for the Eastern District of Pennsylvania, a venue Murray said has “extensive First Amendment experience” and a track record of striking down federal statutes that are overbroad and vague.
Plus, “Philadelphia is where the Constitution was born, so it seemed appropriate,” Murray added.
The Fourth Amendment challenge is based on 2257’s associated enforcement regulations, which require content 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 plaintiffs are individual producers who work out of their homes, and the labeling requirement not only invades their privacy but also allows duly authorized federal representatives 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 is a clear-cut 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 allowed 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.
Murray said the team of attorneys representing the plaintiffs feels the new challenge is particularly strong, because the four dissentions in the previous case indicated the statutes infringe anonymous speech, a right the U.S. Supreme Court has upheld in the past. On Monday, the Supreme Court, without comment, declined to hear an appeal of the Sixth Circuit Court of Appeals’ decision for the government in the previous case, Connection Distributing Co. vs. Holder.
The new case, Free Speech Coalition et al vs. Holder, immediately seeks a temporary injunction barring enforcement of 2257 and 2257a while the court considers the underlying arguments presented in a 57-page brief. The government has 60 days in which to respond to the 32-page complaint, but may have a shorter period in which to respond to the injunction request.
“Federal courts are sensitive to injunction requests,” Murray said. “Conceivably, we could see a hearing within the next few months.”
The plaintiffs are represented by Murray and Lori Baumgardner of the Cleveland-based firm Berkman, Gordon, Murray & Devan, and Kevin Raphael of the Philadelphia firm Pietragallo Gordon Alfano Bosick & Raspani.
