PHILADELPHIA – In the aftermath of major legal decisions, when describing an outcome as a big win for one or more party to the case, there’s often a “but…” which can frustrate and confound our understanding of the ruling’s significance. After all, if an appellate court eventually overturns a trial court’s decision, how significant was that decision, really, in the final analysis?
This is a question worth pondering in the context of the opinion issued by U.S. District Judge Michael M. Baylson, not so much because there’s the prospect of a potential appeal, but because even if Baylson’s opinion stands in full, there remains work to be done in the case by the Free Speech Coalition, the government and Baylson himself.
Other coverage of the case has very ably outlined the particulars of Baylson’s opinion and the reasoning he applied in coming to his conclusions (for more detail on Baylson’s opinion and his analysis of the issues and questions involved in the case, please see Mark Kernes’ fine coverage here), but it’s also important not to lose sight of what comes next in the case.
After a lengthy discussion of the case’s factual background, the extensive history of the litigation of the FSC’s 2257 challenge and his analysis of the arguments and legal standards at play in the case, Baylson’s opinion closed by calling on the parties to come to an accord on a set of regulations which might supplant the aspects of the current 2257 regulations which Baylson found unconstitutional as applied to the FSC and the rest of the plaintiffs.
“The Court has labored in trying to be fair, yet follow the dictates of the controlling precedents,” Baylson wrote in the opinion issued Monday. “The parties may conclude that coming to a joint agreement, even though neither side is getting everything it asks for, is superior to further appeals and possible further remands.”
Baylson also noted that in rendering the opinion, he had “purposely not attempted to finalize the exact parameters of this relief, in specific language.”
“The Court will require counsel to consider these rulings and propose a decree with precise language to carry out the Court’s decision,” Baylson added. “Even if the parties cannot agree totally on all issues, the Court requests that they attempt to agree on the language the Court should use in its final judgment. If the parties cannot agree, then the Court will require each party to submit their own draft and the Court will make a final decision on the final decree.”
In its statement rightfully hailing Baylson’s opinion as “an unprecedented win for the adult industry,” the FSC also acknowledged the unfinished nature of the case.
“While we still await a final judgment, and while there are likely further appeals, the ruling finally signals that adult producers may no longer have to fear criminal prosecution for mere record-keeping violations,” the FSC stated in its release.
“We await the Court’s final judgment in the case, but the yesterday’s opinion is a strong indication that our arguments regarding both First and Fourth Amendment protections have prevailed,” the FSC added. “While yesterday’s ruling is not a complete victory, it is a huge victory. Until the final judgment issued, our members should continue to comply with the regulations as written.”
None of what I have written above should be construed as trying to diminish the significance of this ruling, or the outstanding job done by the FSC’s counsel in the case, Lorraine Baumgardner and J. Michael Murray of Berkman, Gordon, Murray & DeVan, whose high-quality work was also subject of praise from Baylson.
“Plaintiffs have served a valid purpose in bringing this litigation with superb counsel and very effective litigation strategy,” Baylson wrote in the section of his opinion covering the question of the FSC and American Society of Media Photographers standing to challenge the 2257 regulations. “The inability of an individual producer to seek a declaration establishing and enforcing their First Amendment rights is an important reason to allow associations, of producers and others, to gather together and sponsor litigation of this nature.”
Regardless of where the case goes from here, there’s no question it’s a positive development (and significant departure from past rulings regarding 2257) for a court to hold that the “record-keeping portions of the Statutes and regulations are unconstitutional as applied to Plaintiffs because they are overinclusive and not narrowly tailored” and that the regulations’ “labeling requirements are not narrowly tailored or the least restrictive means as applied to Plaintiff,” to cite just two of Baylson’s significant findings.
As we understandably celebrate the fact a judge has so ruled, it’s also important to acknowledge this is a victory which is not yet complete.