PHILADELPHIA – In a letter dated August 1, U.S. District Judge Michael Baylson posed a series of questions to lawyers for both parties in Free Speech Coalition v. Sessions, the adult trade organization’s long-running challenge to the constitutionality of 18 U.S.C. §2257 and §2257A.
One of Baylson’s questions leaps off the page, in particular: “Can the Government identify any person involved in the adult pornography industry who would still be subject to prosecution given this Court’s ruling?”
In a recent memorandum filed by the plaintiffs (which YNOT covered yesterday), they argued that in past cases, the Supreme Court and other courts have extended injunctive relief beyond the plaintiffs in cases where the court found the statute at issue unconstitutional and unenforceable under the First Amendment.
The question Baylson posed to the government’s attorneys is the third of eight questions in Baylson’s letter – and not the only one which suggests the judge may be leaning in the direction of enjoining enforcement of the law.
The first question in Baylson’s letter is another which could indicate the judge is looking for a clear justification in case law to do as the FSC has urged and enjoin the invalidated portions of 2257 in their entirety, not just with respect to enforcement against the plaintiffs.
“In this case, Plaintiffs sought to have the Statutes declared facially unconstitutional, and also unconstitutional as applied,” Baylson wrote. “The Court has so far denied the facial attack, but has ruled that the Statutes are unconstitutional as applied. Is there any similar situation, involving multiple plaintiffs, where the Supreme Court or the Third Circuit have definitively ruled as to whether, in such a case, the court can or should not only enter judgment in favor of the plaintiffs, but also enjoin enforcement of the statute?”
In another question, Baylson asked “Can I issue an injunction to enjoin the Government from enforcing the Statutes not only as to the Plaintiffs, but to others who are ‘similarly situated’ on a theory of collateral estoppel, sometimes referred to as ‘one way estoppel’? Since the Court must rule in favor of the named Plaintiffs, this would include an injunction against the Government enforcing the statutes (and regulations) against them. Is there any additional provision that any Supreme Court case has approved in any analogous situation that would preclude further litigation against other persons ‘similarly situated’?”
Trying to predict how a judge will rule in any case based on the questions he or she asks is an iffy proposition, of course. Several of the questions Baylson posed in his letter ask whether other recent cases can provide further guidance to the court in this case. In conjunction with those questions, the judge’s queries which may indicate he’s leaning in the FSC’s direction on the scope of the injunction can also be interpreted simply as a judge who is torn and seeking all the on-point guidance he can before making his decision.
In any event, it will be interesting to see how Baylson ultimately rules, when the time comes. It will also be interesting to learn the answer to another of the judge’s pertinent questions in the letter: “Do the Plaintiff or the Government have any intention of seeking a ruling from a different district court based on the same facts present in this case?”
You can read the judge’s letter in full here.
