2257 Case Moves Closer to Industry-Favorable Decision

PHILADELPHIA, Pa.—In a hearing lasting just over two hours, U.S. District Judge Michael M. Baylson posed searching questions to both attorney J. Michael Murray, representing the Free Speech Coalition and 15 other plaintiffs, and Assistant U.S. Attorney Kathryn Wyer, representing the U.S. Department of Justice, regarding the federal recordkeeping and labeling law, 18 U.S.C. §§2257 and 2257A, better known simply as "2257."

The case, Free Speech Coalition, et al. v. Attorney General of the United States, is about to celebrate its eighth anniversary, and is back before Judge Baylson on remand from the Third Circuit Court of Appeals. That body ruled last June, in a rehearing in light of two U.S. Supreme Court decisions, that the First Amendment issues attendant to the recordkeeping and labeling must be considered under "strict scrutiny," whereas the entire previous record of the case had been considered under "intermediate scrutiny," a less restrictive standard.

The judge began by noting that since the Third Circuit hadn't declared 2257 unconstitutional under the new stricter scrutiny that applies to the law, he would be doing his best to deal with the questions raised by that Third Circuit decision, two of the most important being whether the law was the least restrictive means by which the government could accomplish its stated objective of keeping minors out of adult productions, and whether the law was narrowly tailored enough to accomplish that objective without burdening those who produce adult material where the performers are clearly adults.

Some of the early discussion revolved around the burdens 2257 places on non-adult industry "producers": couples shooting videos of themselves having sex in their own home, and people sexting to each other on their phones and computers—material that would likely not be shared with others, but for which records needed to be kept under 2257. Wyer argued that such "producers" really weren't burdened by the law—the unstated reason being that they likely weren't even aware of the recordkeeping requirements—but the judge stated that they were nonetheless important in considering whether the law was overbroad, a close relative, legally, to the "narrowly tailored" question. However, the judge noted that the U.S. Supreme Court has yet to make a definitive ruling as to what constitutes "overbreadth" in a law, though numerous cases have dealt with the concept in one way or another.

On that score, Wyer said that the Justice Department had been guided by a Sixth Circuit ruling in an earlier 2257 case, where that court found that private production of adult material was not covered by 2257, though she acknowledged that that restriction was at odds with earlier Third Circuit rulings in the current case.

During today's argument, two of Wyer's main points were, first of all, that producers in the adult industry use performers who look young, possibly young enough to be minors, and that they even advertise that youthfulness through titles that emphasize the word "teen"—and second of all, that it's unclear whether the plaintiff organizations—Free Speech Coalition (FSC) and the American Society of Media Photographers—represent enough of the people producing sexually explicit content to be able to speak for all of those who do.

That last point was the subject of some argument, with Murray noting that so far, only established adult industry producers had been the subject of 2257 inspections (which now require a warrant, thanks to the Third Circuit's most recent ruling), suggesting that it was exactly those producers represented by FSC who felt nearly the entire brunt of 2257 enforcement.

Murray also argued that for a very large portion of adult performers, 2257 records aren't needed because they are obviously adults—but nevertheless, 2257's burdens fall on all of them, and under strict scrutiny, the law as applied would have to be struck as not narrowly enough tailored, though under intermediate scrutiny, it would survive, since that standard only requires that the law "furthers an important government interest." He further noted that the number of performers who are clearly adults is "not insignificant."

Wyer responded by claiming that it was up to the plaintiffs to show that alternatives to 2257 would be less burdensome on the industry, and that it wasn't the government's job to come up with less burdensome alternatives to the existing law. Murray disagreed, stating that the burden was on the government to prove that 2257 satisfied all three prongs of the "strict scrutiny" test, and that the plaintiffs had no such burden.

It was at this point that Wyer trotted out the government's theory that everyone who created sexually explicit content, whether they be someone in the recognized adult entertainment industry or some child pornographer shooting in their basement, was the target of the 2257 law, and even if no recognized adult producer (like, for instance, all FSC members) used minors in their productions, the law should be upheld because the child pornographers (who never have and never will keep 2257 paperwork) do use them.

Judge Baylson, however, disagreed with that assessment, noting that all of the plaintiffs are above-ground business people and the government had not produced any evidence that any of them had produced explicit content with minors. Wyer's only retort that one plaintiff, photographer Barbara Alper, testified that she had not checked IDs of those appearing in some videos she had shot in public locations like Fire Island, N.Y.

Wyer then suggested that the government actually had met its burden of having a "compelling government interest" through the legislative history of Congress cracking down on child pornographers, and also through some Supreme Court decisions. However, one of the main ones she mentioned was U.S. v. Alvarez, the so-called "Stolen Valor case," which dealt with a person lying about commendations he had received from the military—but Murray quickly noted that the Supreme Court had in fact struck down the "Stolen Valor" statute which had criminalized that conduct.

But under questioning by the judge, Wyer admitted that the government had yet to prosecute a case where a member of the recognized adult entertainment industry had been prosecuted for using an underage performer in one of its videos—but she maintained that the Supreme Court had not recognized the adult industry as "monolithic," and that therefore, anyone who made explicit content, even involving children, could claim to be part of that industry.

Judge Baylson, however, later took a different view, and began that discussion by noting that 2257 applies to any producer, as well as all "secondary producers," who don't make the products they sell and rarely come in contact with the performers who are in the content. He described that inclusiveness as "very broad."

Next came a discussion of the possibility that the underage performer problem might be solved by the adult industry using some version of the recordkeeping "opt-out" allowed by mainstream producers, who can simply file a letter with the Attorney General saying that they keep tax and other personnel records on the performers they use for simulated sex act. Murray said that was a step in the right direction, because everyone in the established adult industry always checks the IDs of its performers and keeps copies of those IDs. But in response to a question from the judge, Murray admitted that there are no written industry rules requiring such ID checking and retention—but that there didn't need to be because everyone does it. Judge Baylson commented that if the industry did have such written requirements, however, he felt that would be a factor in his decision whether to strike down 2257. He also asked whether reducing the penalties for non-compliance with 2257 would help resolve the issues in the case, and Murray said it would help.

One troubling thought Judge Baylson stated on the record was his fear that if 2257 were declared unconstitutional, adult producers, who often advertise the youthfulness of their content using the word "teen," might be moved, in the law's absence, to use actual underage performers and hope they would not be discovered doing so. Murray responded by stating that none of the plaintiffs (including all members of FSC) would use an underage performer because they are "totally against" doing so, and that FSC even offered a reward to anyone giving information leading to the conviction of anyone who did use an underage performer. He also noted that the penalties for violating 2257 don't hold a candle to the penalties for creating child pornography.

And when the judge suggested that "youthful-looking" is popular in porn, Murray corrected him to say that "youthful-looking adults" are popular.

It was at that point that Judge Baylson suggested yet again that the plaintiffs and the government try to come up with an industry standard regarding minors attempting to sneak into adult content, and wondered how the attorneys would feel if he came up with such a standard himself? Wyer objected, again suggesting that the adult industry wasn't cohesive enough to be able to have such a standard.

As the hearing drew to a close, Judge Baylson asked if the parties could agree that the operative definition for a "commercial producer" of adult content would be one who sells or trades the material, and both sides agreed with that. The judge then suggested that he might rule that 2257 did not apply to "commercial producers," which he believed would solve a lot of problems.

Murray agreed, and went on to note that that should also let out "secondary producers," since they had no role in creating the content, and that if the government wanted to keep them included, the burden was on it to prove why that was necessary—something he didn't believe they could do. He reiterated that he didn't think producers would use underage performers even without 2257, and noted that there had only been nine prosecutions involving 2257, and none of them had been of a commercial producer.

Finally, Judge Baylson again asked Murray to go back to his clients and try to come up with an industry standard regarding ID checking and retention, and gave him three weeks to do so, at which time he would rule on the remand. However, at Wyer's request, he extended that to four weeks, which would also allow her to consult with her superiors regarding what had taken place during today's argument, and whether they were willing to put on more evidence regarding whether 2257 meets the standards for "strict scrutiny."

In the end, Judge Baylson made it quite clear that unless the government could meet its strict scrutiny burdens, he was inclined to rule 2257 to be unconstitutional, unless the government and the plaintiffs could arrive at an industry standard regarding ID checking/retention that would allow recognized commercial producers to be let out of 2257's requirements.

In short, today's hearing appeared to pave the way for an adult industry victory over 2257, making the eight-year battle well worth the time and expense.