PHILADELPHIA—It was back on September 12 of 2019 that the Third Circuit U.S. Court of Appeals heard its final argument in the case brought by Free Speech Coalition and several other plaintiffs to free the adult industry from the onerous recordkeeping and labeling burdens created by Congress' passage, way back in 1988, of 18 U.S.C. §§2257 and, later, 2257A—and the result was a mixed-bag opinion issued today, authored by Circuit Judge Michael Chagares.
Judge Chagares, writing for a three-judge panel that included Circuit Judges Kent A. Jordan and Luis Felipe Restrepo, noted that the adult industry has been fighting 2257/2257A in the Third Circuit since 2009, and stated at the outset that, "we laud the District Court for its skillful handling of this complex case throughout." The case first came before District Court Judge Michael M. Baylson, who has issued three prior opinions in the case, some of which the Third Circuit supports, but took issues with parts of others.
At the beginning of the Third Circuit opinion, Judge Chagares laid out what parts of Judge Baylson's opinions it agreed with. These included that the two association plaintiffs, Free Speech Coalition (FSC) and the American Society of Media Photographers (ASMP), lacked standing to as-applied First Amendment challenges to the laws, but that the as-applied claims of the 10 individual plaintiffs were "meritorious," though "only with respect to certain categories of claimants," that for those claims found meritorious, "the age verification, recordkeeping, and labeling requirements all violate the First Amendment," and it found that the criminal penalties attendant to those "unconstitutional provisions" are unenforceable.
The Third Circuit also denied all of the plaintiffs' claims that the statutes were facially overbroad, ruling that those plaintiffs "failed to prove that those provisions improperly restrict a substantial amount of protected speech relative to the Statutes’ plainly legitimate sweep," but that for those plaintiffs awarded wins of their as-applied claims, they are entitled to a nationwide injunction against the laws' enforcement.
The Third Circuit opinion spends a number of pages recapping what's happened before in this case and what decisions were reached, all of which can be determined by searching AVN.com for "2257." Importantly, however, the Third Circuit noted that while it had originally approved the use of "intermediate scrutiny" to deal with the claims against the laws, after the trial of the matter, and more importantly after the U.S. Supreme Court's decision in Reed v. Town of Gilbert, the appeals court reversed itself and found that the laws should have been considered under "strict scrutiny," which places a higher burden of proof on the government to sustain the laws.
In between those decisions is when the appeals court decided that FSC and ASMP could not bring as-applied challenges to the laws because the associations failed to show that their claims did not require an "individualized inquiry" for each member of each association.
"Even though FSC’s and ASMP’s members 'collectively produce a significant portion of the works generated by the adult film industry,' that was insufficient for associational standing because 'aggregating that industry's speech in toto [would be] an improper method for identifying the burdens imposed on specific members,'" the panel found, and it spends several paragraphs addressing that associational standing claim, noting that "conferring associational standing" is “improper for claims requiring a fact-intensive-individual inquiry." It also found that despite arguments put forth by plaintiffs, "[N]either FSC nor ASMP represents ‘the adult film industry’ as a whole.” [Citations omitted here and below]
The panel also originally rejected the ten individual plaintiffs' First Amendment challenges, but once strict scrutiny became the operative legal basis, the Third Circuit reversed itself on that issue. First, the panel noted that 2257's age verification requirement could not be applied to "secondary producers," and agreed that, "The [age verification] requirements 'do not advance the Government’s interest' when sexually explicit depictions show 'performers whom no reasonable person could mistake' for a child."
But it's at that point that the appeals panel started making distinctions as to who had to keep age records.
"The record confirms that a substantial percentage of the plaintiffs’ performers are at least thirty years old: 55% for [plaintiffs Betty] Dodson and [Carlin] Ross, 59.7% for [Nina Hartley], 40% for [Dave] Levingston, 52.63% for [Barbara] Nitke, 66.02% for the Sinclair Institute, and 76% for [David] Steinberg," the panel stated. "Likewise, the 'vast majority' of participants in [Carol] Queen's live-streamed show were in their thirties and forties. Although the record does not reflect the age breakdowns of the performers in the depictions that [Barbara] Alper creates or the depictions that [Tom] Hymes posts on his website, the Government bears the burden of disproving the plaintiffs’ proposed alternative," which was to restrict recordkeeping requirements to "images depicting young people under 30 years of age." The panel noted that it was "not convinced" that requiring age verification, recordkeeping and labeling for depictions of those clearly adult performers advanced the legitimate cause of protecting children. As such, the panel agreed that as applied to those plaintiffs, the statutes' criminal penalties for failing to keep records and label the material with 2257 labels should not apply to those plaintiffs whose material clearly deals with performers/models over 30.
The panel then took up the question of whether 2257/2257A are "overbroad" under the Constitution, noting that, as it had in a prior appeals decision, "the Statutes’ requirements validly apply when producers create sexually explicit depictions showing young-looking performers who could be children. We determined that this 'legitimate sweep of the Statutes is vast' because a careful examination of the expert testimony at trial revealed that there is a substantial universe of online pornography depicting young-looking performers." However, the panel noted that it had previously ruled that the statutes don't apply to sexually explicit depictions of those who are clearly adults, nor to "adults who share sexually explicit images between themselves for purely private purposes." Nevertheless, "The plaintiffs have not carried their heavy burden of showing that we should resort to the 'strong medicine' of the overbreadth doctrine to facially invalidate the Statutes, a tool to be used 'sparingly and only as a last resort'."
The final section of the panel's opinion deals with the question of whether the decision(s) should result in a nationwide injunction against the government applying the portions of 2257/2257A that were ruled unconstitutional across the nation as a whole—a permanent injunction that had already been issued by the district court but not enforced pending this appeal.
The Third Circuit here strikes down that injunction, agreeing with the government's argument that "the injunction provided more relief than necessary to the few plaintiffs who succeeded on their as-applied claims only." However, those successful plaintiffs, no matter where they may be located, have been freed from 2257's restrictions and may continue to make sexually explicit material based on the age guidelines accepted by the appeals court.
"It's a great victory for the First Amendment," J. Michael Murray, the lead attorney for the plaintiffs in the case, told AVN. "The Third Circuit agreed with us that the statutory scheme and all the regulations flunked strict scrutiny, at least as applied to the ten individual plaintiffs, and so there will be a permanent injunction restraining the government from enforcing it against them. On top of that, of course we had already gotten the court to agree that the statutory scheme in so far as the inspection provisions were facially unconstitutional under the Fourth Amendment, and so it seems to us that there's very little left of the statutory scheme, and it's a very impressive victory for the First Amendment. Of course, we're disappointed that they didn't grant some of the broader relief that we were asking that the court grant, but when they say that the statutory scheme cannot survive under strict scrutiny, it seems to me that it's difficult to envision the statute surviving this opinion."
Whether it does survive, of course, may be up to the U.S. Supreme Court, if the government decides to appeal the Third Circuit's ruling.
Free Speech Coalition, through its Board chair, attorney Jeffrey Douglas, has issued the following statement in response to the Third Circuit's opinion:
"Free Speech Coalition has prevailed in its long-running suit with the US government over 2257 record-keeping regulations. The decision, handed down by the Third Circuit U.S. Court of Appeals, is a defeat for the Government. However, the decision is complicated, and the scope of our victory is still being determined by our legal team. We expect to have a fuller legal analysis later today, as well as recommendations for proceeding in light of the decision.
"In the meantime, we urge that all producers continue to fully comply with existing 2257 regulations, as the scope has not been determined and the decision issued by the 3rd Circuit is still subject to appeal."
The entire Third Circuit opinion in Free Speech Coalition, et al. v. Attorney General of the United States may be read here.
