PHILADELPHIA—As many in the adult industry are well aware, the current lawsuit against the onerous federal recordkeeping and labeling laws, 18 U.S.C. §§2257 and 2257A, has been ongoing for nearly a decade—but on Monday, U.S. District Judge Michael M. Baylson announced both his opinion regarding the First Amendment challenges to the law, and his order that both the plaintiffs' attorneys and the U.S. Department of Justice, within two weeks, "submit agreed upon language to effectuate the Court's holdings."
Those holdings appear to include a much simplified recordkeeping system, the end of 2257 recordkeeping for secondary producers, and the abolition of criminal penalties for failure to keep all such records—but it's on those points that the judge is seeking suggestions for rewritten regulations. If both sides cannot agree on such language, then each side is to submit its own proposed language by June 11.
Judge Baylson's opinion first traces the history of the case, noting that Congress first passed the legislation that would become 2257 in 1988, and 2257A in 2006, and that the plaintiffs—Free Speech Coalition, the American Society of Media Photographers, Sinclair Institute, Channel 1 Releasing and 11 individuals (though two have since dropped out)—first filed their lawsuit in the Third Circuit in 2009. After an initial dismissal of the case (referred to by Judge Baylson as FSC I), and a reinstatement following appeal (FSC II), a trial occurred, which led to an opinion by Judge Baylson (FSC III), an appeal to the Third Circuit Court of Appeals (FSC IV), and yet another appeal to the Third Circuit based on new U.S. Supreme Court case law (FSC V), which led to this possibly final consideration by the judge.
AVN has reported on this case at all stages, including covering the entire 10-day trial, the results of which can be found by searching AVN.com for "2257."
Since the proceedings began, plaintiffs have been supported in their fight by both the Electronic Frontier Foundation and the American Civil Liberties Union of Pennsylvania—and opposed in amicus briefs filed by more than 20 current and former U.S. Representatives, all Republicans and all originally represented by Jay Sekulow, head of the deceptively named American Center for Law and Justice (ACLJ), founded by televangelist Pat Robertson. Sekulow is currently serving as a personal attorney for President Donald Trump.
Judge Baylson's new order is based on the last remand from the Third Circuit (FSC V), which ruled that based on two recently decided cases, Reed and Patel, the speech restrictions inherent in 2257 and 2257A should be considered under the doctrine of "strict scrutiny": "To survive strict scrutiny analysis, a statute must: (1) serve a compelling governmental interest; (2) be narrowly tailored to achieve that interest; and (3) be the least restrictive means of advancing that interest." Previously, the statutes had been judged under an "intermediate scrutiny" analysis.
What strict scrutiny does is to put a greater burden on the government to prove that, for instance, its claim that the law remains valid even though it is content-based—as was clear from the beginning, but ignored by both Judge Baylson and the Third Circuit before FSC attorney J. Michael Murray made that clear to both.
However, the Third Circuit made it clear that it believed the government had cleared the hurdle on point (1)—that 2257 did serve a "compelling governmental interest" in keeping minors out of hardcore content, focusing instead on the other two points: Whether the law was overbroad in trying to do that and/or whether there were other, less restrictive means by which that could be accomplished. Judge Baylson found instances where the law failed on both counts.
"The task, for this Court, is to 'compare "the amount of speech that implicates the government's interest in protecting children" with "the amount of speech that is burdened but does not further the government’s interest" in an effort to "weigh the legitimate versus problematic applications of the Statutes"'," the judge wrote.
However, even though the judge accepted plaintiffs' testimony and evidence that there had been no instance where the adult industry had knowingly used an underage performer in its content, the judge still believed that 2257 was a valid means to prevent that from happening in the future.
"As long as the demand for child pornography continues in the United States, the Court cannot overlook the significance of the Congressional interests in enacting the Statutes, the high number of child pornography prosecutions, and the need for judicial decision making to respect these factors," he stated.
Recognizing that the plaintiffs had presented a well-argued case, the government had suggested that Judge Baylson could limit the 2257 recordkeeping just to those performers who appeared to be younger than 30 years old, but the judge rejected that "partial validation" as beyond the statute, stating that "limiting constructions are not available where they require 'rewriting, not just reinterpretation' of the Statute."
With that in mind, the judge made three major rulings, the first regarding secondary producers (such as retailers and e-tailers) and others who ordinarily have no personal contact with performers. Two category headings from his opinion tell the story: "Applying the Statutes to secondary producers is not narrowly tailored to the Government’s compelling interest in protecting children from child pornography," and "Applying the Statutes to secondary producers is not the least restrictive means of effecting the Government’s interest." Hence, when new regulations are issued, they should state that secondary producers no longer must obtain and keep 2257 records. However, so-called "non-commercial producers"—individuals who create sexually explicit content for their own personal use or to share with friends—will not be covered by the above exemption, since the judge ruled that none of the plaintiffs fits that category, and therefore could not argue for their interests. He invited such non-commercial producers to bring their own challenge(s) to the statute.
Next, regarding checking and keeping copies of performers' IDs, he noted that while several of the plaintiffs testified that they always check the IDs of their performers, some who shoot "anonymous sex" or who, like Betty Dodson and Karlin Ross, post photos of genitalia without revealing the faces of their owners, sometimes do not engage in such checking—but nevertheless noted that, "The record reveals that virtually all producers require their performers to sign a release, authorizing the use of the work produced to be distributed commercially and setting forth any royalties, fees, etc. This release document is obviously intended to be legally binding... Preventing minors from acting as performers in pornographic productions is a more important social goal than burdening producers with age verification requirements, and this requires that the age of all performers be verified. For these reasons, the Court finds that the universal age verification and identification requirement is narrowly tailored to the Government’s compelling interest in protecting children from participating in pornography as applied to Plaintiffs."
But even though requiring producers to keep performer IDs satisfied the constitutionality of the statute, the method of keeping those IDs did not.
"Although the Statutory recordkeeping requirements help ensure that producers not only secure, but also maintain age verification records for the performers appearing in their sexually explicit films and photographs, it creates significant extra burden... The universal record-keeping requirement, as applied to Plaintiffs, is overinclusive, and therefore not narrowly tailored to the Government’s interest in protecting children from sexual exploitation... Moreover, the Court finds that the Regulations impose many burdensome obligations, including obligations that go beyond the requirements of the Statutes."
Instead, the judge wrote approvingly of a form created by Free Speech Coalition to assist producers of logging and retaining performer IDs, stating, "The Court finds that the proposed self-certification form would be an equally effective alternative for recordkeeping," and adding, "Because the record-keeping requirements are not narrowly tailored, the Court finds that the record-keeping requirements of the Statutes and Regulations are unconstitutional as applied to Plaintiffs."
What this should mean, once the new regulations are released, is that it will no longer matter if the IDs are kept in a special folder or otherwise separated from, for example, STD/HIV tests or model releases, as long as they are maintained by the producer.
Also, regarding labeling of sexually explicit material, the court found that the labeling requirements of the 2257 regulations are also not narrowly tailored nor sufficiently loose enough to pass constitutional muster—but that some sort of labeling would still be required.
"For the reasons identified above regarding the age-verification and identification requirements, the Court finds that the labeling requirements of the Statutes are narrowly tailored as applied to Plaintiffs, but that new regulations will be required," he ruled. "The overall necessity of labeling benefits consumers, who do not want to be subject to criminal prosecutions for child pornography from watching a sexually explicit video.... The Court believes that the new regulations should be simple and straight forward."
Such revised regulations are among the items the judge wants both sides to submit to him within, at the latest, three weeks from this past Monday.
Finally, and particularly important to adult industry producers, Judge Baylson ruled that the criminal penalties currently in effect for producers are far too harsh to be legally justified.
"Plaintiffs contend the punishments contained in the statute are unduly harsh—one could receive five years in prison for a simple record-keeping or labeling violation," he noted. "Moreover, the acts rendered unlawful do not precisely address the problem for which the Statutes were ostensibly enacted, the protection of minors from being used in child pornography. Because Section 2257 mandates prison time for record-keeping and labeling violations regardless of the age of the performers—without imposing its requirements on, or addressing its penalties to, minors—the only way that the Statutes address child pornography is if they have deterrent effect on individuals considering engaging in child pornography." And since it's well-known that people who create child porn don't keep any records on their performers, the statute's criminal penalties mean nothing to them!
The end of Judge Baylson's opinion, however, requires more work to be done by both sides.
"The Court has purposely not attempted to finalize the exact parameters of this relief, in specific language," he wrote in his conclusion. "The Court will require counsel to consider these rulings and propose a decree with precise language to carry out the Court’s decision. Even if the parties cannot agree totally on all issues, the Court requests that they attempt to agree on the language the Court should use in its final judgment. If the parties cannot agree, then the Court will require each party to submit their own draft and the Court will make a final decision on the final decree."
In summary, while far from perfect, this latest decision is an astounding win for the adult industry—and for the Free Speech Coalition, which began not only this lawsuit against this onerous law but at least two others, and which has supported it throughout its existence.
In response to Judge Baylson's decision, Free Speech Coalition has released the following statement:
Yesterday, the federal district court in Philadelphia issued its opinion in Free Speech Coalition’s challenge to 18 U.S.C. §§ 2257, 2257A under the First Amendment. It represents an unprecedented win for the adult industry!
Major arguments made by the Free Speech Coalition have prevailed, and the court struck down a number of the statutes’ key provisions as unconstitutional under the Free Speech Coalition and other Plaintiffs’ as-applied challenge. Specifically, it struck down the statutory scheme as to secondary producers, struck down the recordkeeping requirements as to all producers, and struck down the statutes’ criminal penalties as unduly harsh. The only portion of the statutes the court upheld is the requirement that primary producers check the IDs of their performers to verify their ages.
From the beginning of this case, Judge Baylson has focused heavily on how best to prevent child pornography, a concern shared by all the litigants, including the Free Speech Coalition, and the Government. However, in yesterday’s ruling, the Court recognized that the legal adult industry was entirely separate from the illegal production of child pornography, and that the record-keeping requirements designed for the former were not narrowly tailored, and had significant downsides.
The Court went out of its way to acknowledge the importance of FSC in bring the case, and the incredible work done by our "superb" counsel J. Michael Murray and Lorraine Baumgartner:
"Given the many small individual producers of adult pornography, who could not afford to maintain a case of this nature, the organizational Plaintiffs have served a valid purpose in bringing this litigation with superb counsel and very effective litigation strategy," Judge Baylson wrote. "The inability of an individual producer to seek a declaration establishing and enforcing their First Amendment rights is an important reason to allow associations, of producers and others, to gather together and sponsor litigation of this nature."
With this and the courts’ earlier ruling striking down portions of the statutes under the Fourth Amendment, little remains of the unnecessary and unfairly burdensome 2257 regulations.
Free Speech Coalition members, as well as all members of the legal adult industry, should applaud the work that counsel J. Michael Murray and Lorraine Baumgardner of Berkman, Gordon, Murray & DeVan have put into a long and incredibly arduous case that has been going on since 2009. While we still await a final judgment, and while there are likely further appeals, the ruling finally signals that adult producers may no longer have to fear criminal prosecution for mere record-keeping violations.
The production of child pornography rightfully remains a serious and despicable crime unaffected by this ruling.
We await the Court’s final judgment in the case, but yesterday’s opinion is a strong indication that our arguments regarding both First and Fourth Amendment protections have prevailed.
While yesterday’s ruling is not a complete victory, it is a huge victory. Until the final judgment issued, our members should continue to comply with the regulations as written. We also recommend that anyone interested in the case, the regulations or the industry fight against child pornography review our specific issues with the regulations.