PHILADELPHIA, PA—In a "Memorandum and Order Denying Cross Motions for Summary Judgment" filed today in the 2257 lawsuit filed by Free Speech Coalition and 15 other plaintiffs, Judge Michael Baylson detailed his reasons for denying both the Plaintiffs' and Defendant's Motions for Summary Judgment in the case.
Judge Baylson began by referencing the limited number of issues approved for remand by the Third Circuit Court of Appeals just over one year ago—issues which include charges that 2257 and its companion law 2257A are both vague and overinclusive, and that they violate Plaintiffs' rights of free speech and against unwarranted searches and seizures. He also noted that the appeals court had concluded that both laws are "content-neutral," and that therefore, only intermediate scrutiny of them is to be applied, meaning that the laws must still "further [a] compelling government interest" which the judge later describes as "whether the Statutes burden substantially more of Plaintiffs' speech than is necessary to further the government's legitimate interest of protecting children."
Also open to question at the trial will be whether the laws "leave open ample alternative channels of communication" for explicit sexual speech, or whether "a substantial number of [the statute's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep"? Finally, the trial will deal with whether "the inspections under Sections 2257 and 2257A were unconstitutional either because they were unjustified warrantless 'searches' of areas or items in which there is a reasonable expectation of privacy, or because they involved 'common-law trespass'."
However, not included in the upcoming trial will be the question of whether 2257 and 2257A require an unconstitutional "burden shifting"—that is, whether the laws as they currently exist require that "speakers" of sexually explicit material must prove that the material does not contain minors, in violation of the Fifth Amendment's proscription against a defendant being forced to be a witness against himself, or whether the government itself must prove a violation of child pornography laws without any help from the defendant him/her/itself. If the current trial upholds 2257/2257A [herafter just "2257"], that would undoubtedly be a primary issue on appeal.
Judge Baylson then proceeds to analyze both sides' arguments on the above-noted issues. He first rejects Plaintiffs' claims that 2257 sweeps in an incredible amount of non-commercial material such as that held or transmitted on cellphones, non-commercial computers and social networking sites, and that, according to one of Plaintiffs' experts, only two percent of commercial sexually explicit material "depicts persons that could be confused as minors."
Instead, Judge Baylson finds that "there are genuine disputes of material fact that preclude judgment as a matter of law," including whether there actually is all that much non-commercial material that would be subject to 2257 scrutiny. Rather, he gives credence to the government's claims that "[i]t is impossible to determine a person’s age based on visual observation alone," and that "the vast majority of women employed as performers by the pornography industry are either youthful or very youthful looking." Moreover, the judge challenges the Plaintiffs' assertion that "only a small proportion of the persons depicted in commercial pornography are youthful-looking adults," claiming that he will need to hear testimony on the actual number of "youthful-looking adults," and in what to some might appear to be an exercise in paranoia, "whether there is a considerable number of mature-looking individuals below age 18 who might be tempted to participate in commercial pornography and who would be readily hired by producers if there were no record-keeping requirement." (Even absent 2257, however, child pornography laws exist. If an adult producer knowingly hired a mature-looking minor, that producer would face far harsher sentences under child porn laws than s/he would under 2257.)
Also, in what may force an extraordinary amount of further pretrial work, Judge Baylson states that he wants to hear testimony "about the options Congress had before it when fashioning the statutes to further its stated goal of preventing juveniles from participating in the pornography business." (One of those options being... anti-child pornography laws?)
"From Plaintiffs," the memorandum continues, "the Court would benefit from testimony by witnesses regarding what might have been a more appropriate line for Congress to have drawn—i.e., to require record-keeping only from producers who use models over age 30 or 40 or 50. [???] From Defendants, the Court would benefit from testimony as to why any other statutory scheme would not be appropriate, and as to why the prophylactic nature of Sections 2257 and 2257A is the most effective mechanism to further Congress’s intent."
Considering that in the 27 original inspections plus two repeats that the FBI conducted of adult producers in 2006, not one underage performer was found, that evidence should weigh heavily in the plaintiffs' favor—and again, the "most effective mechanism to further Congress’s intent" has to be the anti-child pornography laws which every state has passed, all of which have survived Supreme Court challenge.
Judge Baylson also wants to hear testimony regarding what areas of the inspected adult businesses were searched by the FBI inspectors. The Plaintiffs have claimed that "the FBI entered personal officers [sic], employee break rooms, office conference rooms ... locked rooms where the records ... were stored [and] closed file cabinets," while the Defendant claims that "the inspections were generally limited to publicly-accessible portions of Plaintiffs’ places of business; that 'to the extent [the inspection] involved entering a nonpublic area, it was a consensual entry as well as a very limited one'; and that 'few, if any, inspections involved the inspection team searching the filing cabinet or other location where 2257 records were kept' as opposed to being given the records by the producers." He will also hear argument on whether the FBI, before beginning an inspection, should have obtained a warrant "issue[d by a judge] ... upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
"These questions of fact—concerning the expectations of privacy in the areas searched, the character of the searches and whether they progressed in a cooperative and consensual manner, and the overall reasonableness of the FBI’s conduct—are best resolved through trial, where there is the possibility for in-court testimony, credibility assessments, and cross-examination," Judge Baylson stated in the memorandum. "Given that both parties rely so heavily on FBI reports, the Court also believes it is essential that the FBI agents involved in the investigations be subjected to cross-examination and possible questioning by the Court." (Indeed, the head of the inspection team, FBI Special Agent Charles Joyner, is expected to be present and testify.)
And finally—and one has to wonder if this were not the deciding factor—Judge Baylson essentially states that, considering his firm trial schedule, he would run out of time if he were forced to consider all the "material submitted by both parties on summary judgment [which] stacked together are several feet high, representing hundreds of pages of briefs, allegedly undisputed facts, deposition excerpts, and other exhibits." Instead, although he avers that he's already fairly familiar with all the material submitted, "further research may be required, and that cannot be completed by June 4, 2013."
What all that seems to mean is that the first two weeks in June in the U.S. Courthouse in downtown Philadelphia are going to be very interesting to the adult entertainment community.
Judge Baylson's Memorand and Order can be found here.