PHILADELPHIA – In a split decision handed down Thursday, the U.S. Court of Appeals for the Third Circuit upheld the majority of 18 U.S.C. § 2257 — the federal statute requiring producers of adult entertainment to keep meticulous records of the identities and ages of performers who appear in explicit photos and videos — but struck down one clause as unconstitutional.
The panel of three judges rejected plaintiff Free Speech Coalition’s argument that the law places undue burdens on producers’ and performers’ First Amendment rights to artistic expression, affirming a lower court’s decision. However, the panel also found the records-inspection regulations contrary to Fourth Amendment guarantees against warrantless searches and seizures.
Although the Third Circuit’s ruling means producers must continue to collect and maintain records as specified in the law and related regulations, enforcement is effectively halted, at least in the manner the regulations currently prescribe.
In fact, a portion of the regulations may violate not only the Fourth Amendment, but also the First.
“In light of our conclusion that the government must obtain a warrant before conducting a search under the statutes, however, we will remand to the district court to consider whether 28 C.F.R. § 75.5(c)(1)’s additional requirement that producers make their records available for at least 20 hours per week also violates the First Amendment,” Judge D. Brooks Smith wrote in the opinion.
While not a complete victory, Free Speech Coalition views the court’s decision as primarily positive.
“The Third Circuit’s decision striking down the recordkeeping inspection regime as unconstitutional under the Fourth Amendment deals a substantial blow to the 2257 scheme,” said attorney J. Michael Murray, who argued the case on behalf of FSC and other plaintiffs. “Under today’s ruling, the government can no longer appear at the doors of Free Speech Coalition’s members without a search warrant and demand entry to inspect their 2257 records in derogation of the Fourth Amendment.”
FSC President and Chief Executive Officer Diane Duke expressed optimism about the ruling and possible future decisions in the ongoing legal challenge.
“This decision was a hard-fought victory for the adult industry,” she said. “The Third Circuit’s decision struck down the recordkeeping inspection as unconstitutional under the Fourth Amendment. The decision prohibits the routine, warrantless inspections which were the hallmark of the original regulation.
“It is important to note that this decision only protects members of the Free Speech Coalition, the plaintiff in the case,” she added.
Duke said although a significant aspect of 2257 and associated regultions has been deemed unenforceable, FSC is not inclined to give up its challenges to the remainder.
“[W]e entirely disagree with the court’s holding that the regulations themselves are not prohibitively burdensome to producers under the First Amendment,” she said. “However, the court remanded some of the restrictions back to a lower court — including those that require business owners keep certain hours to make records available for inspection — and we’re hopeful they will be overturned. Over the next few weeks, we will be examining the decision in more detail to determine if we should appeal it en banc.”
