PHILADELPHIA—Plaintiffs in Free Speech Coalition, et al v. Attorney General of the United States, the lawsuit seeking to eliminate the government's recordkeeping and labeling requirements for adult content, have filed a petition with the Third Circuit U.S. Court of Appeals to allow them to respond to the U.S. Department of Justice's response to plaintiffs' Petition for Panel Rehearing and For Rehearing En Banc.
At issue is the fact that the Justice Department attorneys for the first time brought up, as a defense for the law, the 1986 case of Renton v. Playtime Theatres and the doctine of "secondary effects" created therein. As noted here, the government urged the court to deny a rehearing on its prior decision in the case based on the idea that minors performing in adult movies and web content is an expected "secondary effect" of not forcing content producers to keep voluminous records on each of their productions and to make those records available to government inspectors for at least 20 hours per week for a possibly indefinite period of time.
In their petition, which was filed with the court on Friday, plaintiffs' attorneys J. Michael Murray and Lorraine R. Baumgardner seek to challenge the government's reliance on Renton, which was not mentioned in the body of the Third Circuit's original decision that the 2257 laws deserve only intermediate First Amendment scrutiny rather than the strict scrutiny—a higher standard—that the recent U.S. Supreme Court decision in Reed v. Town of Gilbert would seem to mandate. The government had argued that based on Renton's secondary effects doctrine, the Reed decision was inapplicable to the case at hand.
In their petition, Murray and Baumgardner argue that since the Third Circuit's decision mandating intermediate scrutiny relied not on Renton but on a subsequent Supreme Court ruling, Ward v. Rock Against Racism (1989), that plaintiffs should be allowed to respond formally to the government's contention that Renton should be the controlling factor in the "intermediate vs. strict scrutiny" argument.
"The Government recognizes that 'Ward’s content-neutrality analysis' does not apply when a regulation of speech on its face, draws distinctions based on the speech’s content," the attorneys argue. "Instead, it argues that Renton–a case it neither cited nor discussed in its briefs in this appeal or the first appeal... Plaintiffs-Appellants have not had an opportunity to respond to the Government’s new, alternative argument that Renton’s secondary-effects doctrine applies to support the application of intermediate scrutiny in this case. Plaintiffs-Appellants, therefore, seek leave to file a reply addressing this new argument and explaining why this is not a Renton secondary-effects case and why Reed is controlling here." [Citations removed]
If the Third Circuit grants permission for the plaintiffs to file the additional brief, the attorneys have promised to have their response in the Third Circuit's hands by Aug. 19, less than two weeks from the filing of the request. It is not expected that granting plaintiffs the ability to file their response would delay the Third Circuit in deciding whether to grant the request for rehearing.
Th Plaintiffs-Appllants' Motion For Leave to File a Reply to United States' Response to Petition For Panel Rehearing By Aug. 19, 2015, can be found here.
