PHILADELPHIA – In an order filed late Friday and published Monday morning, U.S. District Judge Michael Baylson permanently enjoined the government from enforcing portions of 18 U.S.C. §§ 2257 and 2257A against any producer – the sort of broad, inclusive injunctive relief sought by the plaintiffs and argued against by the government.
While Baylson previously dismissed the “organizational plaintiffs” – the Free Speech Coalition and the American Society of Media Photographers – from the case for lack of standing, the judge noted in a memorandum accompanying his order that the issues in the case have implications which reach well beyond the remaining plaintiffs.
“In the first place, this is not a single plaintiff case,” Baylson wrote. “In some of the cases the Defendant relies on, there have been only one or a few plaintiffs, and the facts alleged are common to all plaintiffs. Here, as noted above, there are numerous Plaintiffs, representing many different aspects of the adult pornography industry.”
Baylson noted the plaintiffs “could have, and perhaps should have, brought the case as a class action,” but added that the absence of a class “does not, as a matter of law, limit the Court’s ability in issuing a final decree that is fair to the parties.”
Harking back to one of the questions he asked of the government in a recent letter to the parties, Baylson also noted in his memorandum that the government’s legal team “could not detail any aspect of the adult pornography industry that would be unaffected by this Court’s ruling, and still be subject to valid and constitutional enforcement of all aspects of the Statutes in the future.”
“In addition, the Third Circuit has already struck down one aspect of the Statute as unconstitutional under the Fourth Amendment, and although it did not enter a final judgment, the clear import of the Third Circuit’s ruling was that the Government could not enforce the search and seizure provisions of the Statute against anyone, not just the individual Plaintiffs,” Baylson added.
In addition to stating the scope of the injunctive relief, in his order Baylson also summarized his previous rulings in the case.
Baylson found the plaintiffs had “failed to meet their burden on their First Amendment facial overbreadth claim” and ruled in favor of the government on that claim. He also reiterated his ruling dismissing the FSC and ASMP from the case for lack of standing and held that 2257, 2257A and their implementing regulations are “are unconstitutional under the First Amendment as applied to secondary producers” and permanently enjoined the government from enforcing the statutes and regulations against secondary producers.
Baylson also found that 2257’s labeling provisions and “associated criminal prohibitions” are unconstitutional under the First Amendment and permanently enjoined the government from enforcing those requirements.
The judge also limited the application of those portions of the law which remain enforceable in light of his rulings, stating that with the exception of “prosecutions of primary producers for violation of the identification and age verification requirements of 18 U.S.C. § 2257(b) and 18 U.S.C. § 2257A(b), the criminal penalties set forth in 18 U.S.C. §§ 2257(i), 2257A(i) are unconstitutional under the First Amendment.”
The judge also noted the court previously found the regulation which requires recordkeepers to “make such records available to the Attorney General for inspection at all reasonable times” unconstitutional under the Fourth Amendment, and permanently enjoined enforcement of that provision, as well.
Finally, Baylson’s order states that “each party is to bear its own costs.”
It is anticipated that the government will appeal Baylson’s order.
