Governments’ Stated Intent vs. Letter of the Law: Why We Should All Ignore the Former in Favor of the Latter
In discussions about the recent 2257 records inspections conducted by FBI teams (Wednesday’s inspection of Sunshine Films being the fourth such inspection in recent weeks), some webmasters and other observers have focused on reports suggesting that the companies inspected have “passed” their inspections.Indeed, at least according to the published comments from representatives of the inspected companies, the FBI teams involved indicated that the inspections had gone well and appear to have given those inspected a general “thumbs up.”
In light of the fact that in at least one instance, the producer inspected appears to have lacked the required documents pertaining to content for which the individual is considered the “secondary producer,” some observers have noted with relief that the inspections have not resulted in what one might call “technical violations.”
By “technical violation,” I mean something along the lines of having all the proper identifying records, but failing to have one’s records cross-referenced in the extensive and complex manner required under the actual text of the regulations.
Those who have been following the case Free Speech Coalition v. Gonzales, the FSC challenge to the 2257 regulatory scheme, might recall that when the DOJ responded to the FSC interrogatories in the case, many observers put a great deal of credence in the DOJ responses, and it appeared that the DOJ answers assuaged some of their fear with respect to potential technical violations and the prospect of being punished for failing to comply with minute and difficult to understand details of the regulations.
Many have also derided as a form of “chicken little” those adult industry attorneys and other industry figures who warned (and continue to warn) about the implications of the revised 2257 regulations and the potential chilling effect the regulations could have on the industry, especially if enforced strictly according to the language of the law.
Members of the adult industry to whom the regulations apply, be they “primary” or “secondary” producers, should not take too much comfort in the notion that the government isn’t being “picky” with their enforcement of the regulations, nor are those challenging the 2257 regulatory scheme in court likely to see the federal government’s restraint heretofore as a “predictor of future performance,” so to speak.
Why?
A decision handed down earlier this week by the US Court of Appeals for the Third Circuit in the case of Conchatta Inc v Miller (see related YNOT article posted today), spells out the problem quite clearly.
Conchatta involves a topless bar and two of its employees suing for injunctive and declaratory relief, arguing that a Pennsylvania statute prohibiting “lewd, immoral or improper entertainment” at venues licensed by the PA Liquor Board rely on language that is unconstitutionally overbroad and impermissibly vague.
Although the language of the law is reasonably interpreted to include all manner of venues that serve alcohol, and not just strip clubs, the State argued that as the Liquor Board had no intention of prosecuting “legitimate” businesses for violations of the statute, the law itself should not be considered overbroad.
Writing for the unanimous three-judge panel, Judge Julio M. Fuentes states, most unambiguously, the Court’s position with regards to the State’s “intent” for enforcement of the statute.
“In short, the current enforcement intentions of the Liquor Board are of no relevance to our analysis of the scope of the Challenged Provisions,” Fuentes wrote.
Although the Court accepted the Commissioner’s assertion that the law was enacted as a means to combat “negative secondary effects” that allegedly stem from the combination of erotic entertainment and the sale of alcohol, the panel of judges found that the actual statutory language “trumped” the professed intent of the State.
As Judge Fuentes notes, “the mere fact that an agency does not currently intend to apply a statute in an unconstitutional manner cannot have the effect of an explicit limiting construction,” and “as no narrowing construction is available, we must consider the scope of the Challenged Provisions based on their plain terms.”
The significance of this point should not be underestimated, and, in my opinion, the same standard of relevance should be attributed to the DOJ response to the FSC interrogatories with respect to the Court’s evaluation of the contested provisions within the 2257 record keeping scheme.
Let’s be clear here; the issue is not that the Courts don’t trust the presumably earnest and well-intentioned assurances made by prosecutors in these cases, or doubt the sincerity of similar statements offered by Attorneys General and other government officials.
It’s equally untrue that the Courts, including the Third Circuit panel in Conchatta, are out to shoot down the government’s ability to regulate sexually-oriented businesses.
The plain fact of the matter is that too many statutes intended to regulate erotic expression and adopted across the country, whether it is limitations on the production of pornographic videos, restrictions on acceptable actions of topless dancers, or 2257 regulations, are worded in a fashion so vague, so broad, and in some cases so senseless, it creates an environment in which otherwise law-abiding citizens can’t be sure if their actions violate the law, or not.
Such a circumstance, in which legitimate merchants who create materials presumed to be protected by the First Amendment are forced to conduct their business in such an unsure legal environment, is deplorable, ought to be unacceptable, and – worst of all – is entirely unnecessary.
As Judge Fuentes noted in Tuesday’s ruling, the statute “clearly could have been drafted more narrowly,” meaning that Pennsylvania’s legislators have only themselves to blame for their law being now partially invalidated.
With regards to the future 2257 inspections, the DOJ’s assurances thereon, and the language of the regulations themselves, my advice to all concerned is to adopt an attitude like that of the courts, an attitude perhaps best described as “respectful skepticism.”
As Ronald Reagan once put it; “Trust – but verify.” In this case, I’m with Reagan.
The DOJ’s assurances are all well and good; now Congress needs to go back and put those assurances into the actual language of the law.
Then we can all get back to work, comfortable that we will never face severe penalties despite our good faith effort to follow a well-intentioned, but poorly worded, law.