PHILADELPHIA, Pa.—The Third Circuit Court of Appeals panel which in May decided the case of Free Speech Coalition, et al. v. Attorney General of the United States announced on Friday that it had scheduled December 9 as the date on which it will hear arguments from both sides regarding the rehearing and reconsideration it had previously granted in the adult industry's most recent challenge to the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A.
The announcement of the panel rehearing was rare enough, but to allow both sides to reargue the case before them is rarer still.
"The action the panel has taken now vacates the panel's previous opinion and they will reissue their opinion after oral argument and a review of the briefs filed," said First Amendment attorney and respected legal analyst Reed Lee. "They haven't given too many signals about where they might go differently or whether they will come to the same result by a slightly different path, but it is very encouraging that they decided to hear oral argument on this. It is very difficult to see how we could lose ground with respect to the last opinion and there are very many respects in which we may make some real, real genuine progress."
In one sense, the vacating of the panel's previous decision is troubling, because that decision struck down the warrantless records search authority built into the 2257 regulations, but Lee was optimistic that that win will be sustained in the panel's upcoming decision, and may add even greater relief to adult companies' expensive record-keeping burdens.
AVN speculated early last month that the panel's decision to revisit its previous ruling in the 2257 case was based largely on a recent Supreme Court decision which came down after the panel's previous ruling, and which dealt directly with one of the underpinnings of both the appellate and trial courts' rulings regarding the government's power to require adult producers, and only adult producers, to keep voluminous records on performers in their productions, with harsh penalties for those who failed to keep the records, or failed to keep them in the approved format. Lee agreed that that Supreme Court decision probably played a role in both the grant of rehearing, and the decision to allow further argument in the case.
"I think that's beyond reasonable doubt," Lee said. "It is because of the question of whether the Supreme Court's decision in Reed [v. Town of Gilbert] last season changed the First Amendment analysis in a substantial way. If this panel thinks the answer to that is 'yes,' we could see very, very different results on the First Amendment question."
