Analysis: FSC Answers Government's Motion to Dismiss 2257 Suit

PHILADELPHIA—Free Speech Coalition, the trade organization of the adult entertainment industry, yesterday filed its response to the U.S. Department of Justice's (DOJ) Motion to Dismiss FSC's lawsuit against the federal recordkeeping and labeling law, 18 U.S.C. §2257.

The reply brief, filed by FSC attorneys J. Michael Murray and Lorraine Baumgardner, first tackles the government's claim that 2257 helps control child pornography, which FSC agrees is a valid governmental purpose, but argues that 2257 and its attendant regulations are valueless in accomplishing—and that the regulations are a content-based form of censorship of sexual speech.

Normally, content-based speech regulation is subjected to strict scrutiny by the courts, meaning that in order to survive challenge, the government must show that the law serves a compelling government interest—which fighting child porn surely does—but also that the law is narrowly tailored to accomplish that task and that it is the least-restrictive means by which to do so.

However, the government has argued that the law should be subject only to intermediate scrutiny; in other words, that the statute in question furthers an important government interest and that the law is substantially related to accomplishing that interest.

Throughout the FSC brief, however, while reserving their right to argue that strict scrutiny is the applicable level of inquiry, Murray and Baumgardner demonstrate that even under intermediate scrutiny, 2257 fails to meet its burden.

"That inquiry [intermediate scrutiny] requires an assessment of: (1) the seriousness and extent of the problem that the regulation was designed to address, and (2) the efficacy of the means chosen to address the identified problem," the plaintiffs argue. "Plaintiffs contend (and will present evidence demonstrating) that the problem identified by the government—the inadvertent use of underage performers in adult productions—is non-existent and has always been so." [Citations removed here and below]

Plaintiffs go on to note that there has been only one "well-publicized instance of an underage performer appearing in an adult film": Traci Lords, who used "a sophisticated ruse employing artifice and fraud which would not have been prevented by the most punctilious compliance with either 18 U.S.C. §2257 or 18 U.S.C. §2257A." Indeed, neither statute requires that adult producers actually be able to distinguish a real photo ID presented by a performer from a well-crafted fake, thereby rendering both statutes ineffective in preventing minors from acting in adult productions.

"The government’s contention that the record keeping requirements are a necessary means to assure that underage performers do not appear in adult films fails to take into account two important facts," plaintiffs argue. "(1) commercial producers of adult films have always checked identification to verify that their performers are adults, thereby ensuring that their expression is protected by the First Amendment; and (2) there are numerous state and federal criminal child pornography laws, the violation of which leads to harsh punishment, that serve as compelling incentives for producers of sexually explicit expression to be certain that  young-looking performers are, in fact, adults and not minors." [All emphasis in original]

Murray and Baumgardner go on to argue that even Congress doesn't think that keeping voluminous records on every adult performer is necessary, since it enacted 2257A, which allows producers of simulated sexual material simply to file a letter with the attorney general stating that they keep such records, non-indexed other than for tax and other purposes, and affirm that the actors are of the appropriate age.

Plaintiffs also point out that the statutes are not narrowly tailored to accomplish the government's putative purpose, since it doesn't even require that the performers on whom records are to be kept even look like they might be children—69-year-old plaintiff Dave Cummings being only the most obvious example. The statute also fails to distinguish between commercial and non-commercial sexual works (some of the plaintiffs are sex educators and artists), nor even between "an adult film and a textbook on human sexuality."

"Indeed, the government was unable to convince either the majority or the dissents in Connection v. Holder (en banc) that the language of the statute permitted a construction confining its reach to expression produced 'for sale or trade'," Murray and Baumgardner argue, referring to their long-standing Sixth Circuit case which was recently denied certiorari by the Supreme Court.

Importantly, the plaintiffs encourage the district court here to "give thorough, independent consideration of its own to the various opinions, including the dissents, issued in Connection and to determine for itself which is the most persuasive and most consistent with the authority of the Third Circuit," noting that none of the prior decisions regarding 2257—neither American Library Assn. v. Reno, the first federal look at the then-new law, nor Murray's own Connection Distributing—are binding on the Third Circuit.

Regarding the statutes' lack of narrow tailoring, plaintiffs argue that "Defendant does not contest Plaintiffs’ claim that the statutes restrict and burden a substantial amount of protected expression. They do not contest that the statutes apply to 'all expression containing sexual imagery–no matter how fleeting, no matter how artistic or valuable as political commentary or journalistic documentary, no matter how clear it is that the persons depicted are middle-aged adults.' Rather the government maintains that the statutes’ application to this vast amount of protected expression is necessary because the statutory objectives can tolerate no subjectivity in evaluating a person’s age."

No doubt actors Dave Cummings and Nina Hartley will be pleased that the government's position is that it can't tell whether they're children or not!

Or as the brief puts it, "that premise withers under examination."

Plaintiffs go on to state that adult producers routinely verify that their performers are adults, and "do not simply make a subjective judgment"—but that, "Clearly, there is no chance of error in making the determination that a person depicted in a sexually suggestive pose is not a minor when he is in his 30s, 40s, 50s or beyond. The record keeping requirements are not necessary to achieve the government’s objectives in those instances."

Likewise, the recordkeeping requirements are useless when the producer of the explicit material is him/herself or a spouse or lover, and plaintiffs note that "millions of Americans... post their own images and images of their partners on adult social network websites" without checking IDs.

"The burdens imposed on a substantial and robust body of protected expression are simply unnecessary," the brief concludes. "Plaintiffs are entitled to put on evidence establishing that fact."

Murray and Baumgardner then spend several paragraphs detailing the difficulties that some plaintiffs would have in complying with the statutes, and discuss why the ability to use third-party recordkeepers doesn't solve the problem.

The brief then deals with the corollary to the "narrowly tailored" deficit: Overbreadth.

"The government attempts to avoid the statutes’ overbreadth problem by a sleight of hand," Murray and Baumgardner write. "Rather than justifying the statutes’ demands as a regulation of child pornography as unprotected expression that incidentally implicates protected expression depicting adults, it argues that the statutes’ regulation is focused on the 'spectrum of speech' which, if it depicted children, would be unprotected expression... Its argument rests on the premise that if an adult depicted in constitutionally protected sexually explicit expression were actually a child, the expression would be unprotected child pornography. From this premise—that there is no constitutional impediment to regulating child pornography—the government concludes that it is perfectly reasonable to burden constitutionally protected sexually oriented expression that is not child pornography."

"That same reasoning could justify regulating almost any expression, without limitation," plaintiffs continue. "If a newspaper article contained deliberately false, damaging statements, it would be unprotected libel; therefore, it is perfectly reasonable, under the government’s 'spectrum of speech' theory, to impose restrictions on all newspaper articles because if their accurate statements were replaced by damaging falsehoods, they would not be protected by the First Amendment. If a speech by a political activist included language that immediately and intentionally incited her audience to riot, then it would be unprotected speech; therefore, it is perfectly reasonable to impose restrictions on all speech by political activists because they are part of 'the spectrum of speech' that include unprotected incitement to riot. The list could go on."

As evidence of the impropriety of suppressing speech through overburdensome regulation, plaintiffs cite Free Speech Coalition's own Supreme Court win against the Child Pornography Prevention Act, which stated that, "The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse... The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process."

Murray and Baumgardner then deal with the strict scrutiny aspect, which they believe should be the controlling level of scrutiny with which the court should look at the lawsuit. They argue that 2257 and 2257A are clearly content-based regulations, since 2257A exempts producers of simulated sexual material from the adult producers' 2257 requirements for real sexual material—and what could be more content-based than making that distinction?

As such, both statutes impose a prior restraint on expression, because absent the recordkeeping (or in Hollywood's case, a letter affirming that similar records are kept) and labeling, sexual expression cannot be communicated under the law—and worse, even if the expression is beyond question depictions of adults engaged in sexually explicit conduct, mere failure to keep the records and to label the material is a crime unto itself—and therefore repressive of that very expression.

Finally, the brief deals with the Fifth Amendment implications of the statutes, since maintaining the records and allowing FBI agents access to them may force producers to be, in effect, "witnesses against themselves"—plus, the statute requires such producers to allow the FBI records inspectors access to their premises where the records are kept, and the law specifically states that if the inspectors notice evidence of other "crimes" being committed, they may seize and use that evidence in non-child porn proceedings—like, for instance, obscenity prosecutions.

In all, it's a hell of a response to the government's tired arguments in favor of keeping the statutes—and it'll make for one hell of an interesting argument in front of Judge Baylson on March 12.