Analysis: Judge Dismisses Free Speech's §2257 Lawsuit

PHILADELPHIA—In case anyone hadn't figured it out yet, sex is an incredibly powerful—perhaps the most powerful—motivating force in human interaction, and as such, everyone who seeks power wants to control it. That includes clergy, politicians, employers, parents, teachers—you name it.

So why is that important to U.S. District Judge Michael Baylson's dismissal of the Free Speech Coalition's (FSC) lawsuit challenging the federal recordkeeping and labeling laws (18 U.S.C. §§2257 and 2257A)? Because to assume that Congress enacted those laws with no regard for the content of the speech those laws affect—SEX!—shows either a complete lack of understanding of human nature and/or a deliberate disregard for one's own nature, no matter under how many layers of "civility," religious belief or politics they may have attempted to buried it.

"What we have in Section 2257 is a holdover of the Meese Commission's deliberate attack on sexually explicit expression," observed attorney and constitutional scholar Reed Lee, "and it appears that the Meese Commission used every trick it could find in a book to burden and to—if it had its way—stamp out sexually explicit expression even between consenting adults. The problem is, the book it was looking in had nothing to do with the U.S. Constitution."

Judge Baylson's animus toward sexual expression is obvious in the first sentences of the first two paragraphs of his opinion: The first—"Child pornography is one of the serious scourges of our time"—because the lawsuit filed by Free Speech Coalition and 18 other plaintiffs isn't about child pornography, it's about government overreaching; and the second—"Let us turn to recordkeeping, as old as history itself"—because it attempts to minimize the deleterious effects of the massive and unconstitutional mandatory recordkeeping scheme the government has put in place in order to accomplish—as noted in our reprinted article on Tuesday—nothing.

Indeed, "nothing" describes the relevance of much of the verbiage of Judge Baylson's opinion, which goes on for pages about how terrible child pornography is (when no one involved in the case has denied that for a moment); how much effort the government has put in over the years to suppress it (when that effort has little to do with the issues raised by the FSC lawsuit because, as previously noted, §2257 doesn't stop child porn); and what the courts have had to say about minors appearing in sexually explicit material (again, nothing to do with the current suit).

Baylson, a Bush II appointee nominated by then-Pennsylvania Republican senators Rick "Man On Dog" Santorum and Arlen Specter, has been a federal judge since 2002, having previously served as U.S. Attorney for the Eastern District of Pennsylvania for five years as a Ronald Reagan appointee—a résumé that might give one reason to suspect that he might be less than objective about sexual expression to begin with—a suspicion clearly borne out by the FSC dismissal opinion.

Claiming that, "The aim of the [§2257] requirements is to provide a reliable mechanism for verifying the ages of the performers appearing in these sexually explicit depictions, to help ensure that children are not being used in their production," Judge Baylson spends the next 108 pages of his opinion failing to present any evidence from the pleadings that the law will actually have those effects. In fact, as previously noted, since adult producers are not (and probably could not) be required by the law to distinguish legitimate government-issued photo IDs from clever fakes, and since all four of the minors previously discovered to have snuck into the adult industry had excellent (if fraudulent) IDs, the law, even absent its many other infirmities, therefore already fails on utilitarian grounds.

"In considering this challenge," Judge Baylson assesses, "a primary principle on which this Court relies is the legal distinction between content-based and content-neutral—sometimes referred to as viewpoint-specific and viewpoint-neutral—statutes in the First Amendment context."

It's an important distinction, because if §§2257 and 2257A were found to be content-based, they would be subject to strict scrutiny, a legal principle that requires the trier of fact to determine if the law under consideration serves a "compelling governmental interest," is "narrowly tailored" to accomplish that interest, and is the "least restrictive means" for doing so. If the law were to fail any of those three "prongs," it would be invalid under strict scrutiny.

Of course, Judge Baylson concluded that the recordkeeping and labeling laws were not content-based, but rather content-neutral, meaning he would be free to apply the significantly looser test of intermediate scrutiny: Whether the statute furthers an important governmental interest, and does so in a way that does not directly target the content of the speech itself.

Or as the judge himself put it, "The statutes and regulations are content neutral. That is, whatever burden these age-verification requirements place on constitutionally protected expression is not motivated by any disagreement with or disapproval of the content of that expression, but instead arises incidentally in the furtherance of a purpose—preventing the sexual exploitation of children—that is unrelated to the protected expression's message or viewpoint."

As Reed Lee noted above, however, that's horseshit: The Meese Commission's aim in proposing what became §2257 was to make it more difficult for adult producers to make content by forcing them to spend what eventually became an ever-increasing amount of time and resources copying, indexing and filing records in a minutely-described fashion, any deviation from which could land the producer in prison for five years and force him/her to pay a massive fine. The statutes that might actually prevent a producer from using minors to perform in sexually explicit conduct are the child pornography laws, which double the prison time of a §2257 violation—and involve actual children!

"In light of the nature and needs of this content-neutral purpose," the judge continues, "the age-verification requirements are not unduly onerous or overly sweeping; rather, under an intermediate level of scrutiny, they are a narrowly tailored means for Congress to combat child pornography, and do not unconstitutionally suppress protected expression."

Let's see: When the adult movie industry topped out just before the recession, it was producing just over 13,000 titles per year, none of which had any children in them, and was required by §2257 to keep a separate photo ID on every performer, no matter of what age, in every production (new or compilation), with those IDs cross-referenced by every stage name or nickname the performer had ever used, and further cross-referenced by every movie that performer had done for the same company, plus a copy of the movie itself has to be included with the file—and importantly, that 13,000-plus figure doesn't include adult magazines or the plethora of Web-only adult content—chat rooms, live webcam shows, etc.—and video content repurposed for Web use. (Remember, "secondary producers" are required to keep these records also.) It's been estimated that that would require terabytes of storage space and dozens if not hundreds of personnel to handle it all—and yet Judge Baylson dismisses this as "not unduly onerous or overly sweeping"!

Also of concern is Judge Baylson's claim that under the §2257 law, "'No information or evidence obtained from records required to be created or maintained by this section shall... directly or indirectly, be used as evidence against any person with respect to any violation of law,' except there may be 'use of such information or evidence in a prosecution or other action for a violation of this chapter or chapter 71, or for a violation of any applicable provision of law with respect to the furnishing of false information."

That's an important caveat, because the chapter of the Code of Federal Regulations that deals with §2257 clearly states, "Notwithstanding any provision of this part or any other regulation, a law enforcement officer may seize any evidence of the commission of any felony while conducting an inspection." And as AVN readers must well know by now, trafficking of obscene materials is a felony, so forcing a producer to give up his/her Fourth Amendment rights against warrantless searches—another important aspect of this case—could easily lead to an equally unwilling waiver of the producer's Fifth Amendment right not to be a witness against him/herself (usually referred to as "self-incrimination.")

What follows are eight pages dedicated to an exposition on "Child Pornography Legislation Predating §§2257 and 2257A" (featuring lots of quotes from conservative D.C. pols Mike Pence and Mitch McConnell), wherein Judge Baylson briefly turns his attention to the section of §2257A that permits producers of simulated sexually explicit content or explicit content "constituting lascivious exhibition of the genitals or pubic area of a person" simply to file a "certification exemption" letter with the Attorney General. His foretaste begins by quoting Sen. Patrick Leahy, who reasoned that, "[b]ecause the focus of these requirements is adult pornography and the protection of children, not mainstream visual depictions and activities that do not threaten children, [§2257A] includes provisions intended to limit the reach of these requirements to those who are actually exploiting children." (Because after all, Hollywood would never exploit children by involving, say, a 13-year-old girl in simulated molestation or other forms of abuse.)

The idea that Hollywood doesn't sexually exploit children is, of course, crap... just as is the idea that children are involved at all in adult industry productions. But more on that later—after four pages detailing the plaintiffs involved in the suit and a little of their backgrounds, as well as the procedural history of the suit so far... and a reassurance by the judge that "although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions"; a preview of several later instances where he'll claim that the plaintiffs haven't presented enough facts to warrant upholding a facial challenge (which this suit largely is) to the statutes.

What follows is a lengthy discussion of the level of scrutiny to be applied to consideration of the statutes, but of particular importance is plaintiffs' claim that, "§2257 must be evaluated as a content-based regulation of speech because §2257A provides different treatment for certain commercially produced expression containing depictions of simulated sexually explicit conduct or of actual lascivious displays of the genitals or pubic region."

On its face, the claim would seem to be self-evidently true: Hardcore producers who as a matter of course keep various labor and tax records on performers are not afforded the same "certification exemption" as are softcore producers who keep those same records, so the conclusion that softcore producers have been given a "get out of jail free" card based on the type of content they produce would seem to be indisputable.

Judge Baylson also notes here that the plaintiffs argue, among other things, that §§2257 and 2257A "fail to advance" the government's alleged interests "in a direct and material way"; that the statutes are "overinclusive" in part because they sweep in performers who clearly are not minors; and that the statutes "do not leave open adequate alternative channels for communication," since while not banning explicit material directly, they certainly reduce its amount because of the costs of collecting and maintaining the records. (There are several other allegations in the complaint, including some noted earlier in this story, but the above are the ones most likely to affect adult video and Web content producers.)

After another eight pages in which Judge Baylson attempts to summarize previous lawsuits involving §2257—most notably the Sixth Circuit's en banc decision in the Connection Distributing case and FSC's first lawsuit from the District of Colorado—he finally gets down to tackling the issues themselves on page 45... but not before ruling on the government's "collateral estoppel" motion, wherein they claimed that because of some of Judge Walker Miller's rulings in Free Speech Coalition v. Gonzales—the Colorado lawsuit which Judge Miller eventually dismissed at the parties' request without prejudice—FSC and co-plaintiff Dave Cummings are precluded from raising their First Amendment claims in the current lawsuit, since that would constitute a "second bite at the apple"—a no-no in most legal disputes. Judge Baylson's collateral estoppel ruling seems targeted at preventing FSC (and Cummings) from taking part in the suit if his general dismissal of the suit is overturned, but that doesn't stop him from attempting to knock down FSC's claims anyway.

Turning to the First Amendment claims, Judge Baylson quickly (and erroneously) conflates the §§2257 and 2257A statutes with child porn statutes, and once again launches into a treatise on why there are child porn laws in the first place, referring often to U.S. v. Michael Williams (the "advertising child porn" case) and U.S. v. Stevens (the dog-fight videos case), even noting that the Supreme Court, in Ashcroft v. Free Speech Coalition (the CPPA case), stated that "the child-protection rationale for speech restriction does not apply to materials produced without children"—which, of course, would be all of the adult industry's product.

But there's a fly in that ointment: According to Judge Baylson, §§2257 and 2257A are constitutional because "their target is not the content of certain speech, but rather its production."

Or is it? And is targeting the production of presumably protected speech a legitimate government goal?

"It's burden shifting!" exclaimed Lee. "Here's how they reason: They reason that the government may legitimately target child pornography. Child pornography is hard to determine, for sure; therefore, in furtherance of its efforts to combat child pornography, the government reasons that it may criminalize material that is not properly documented as not being child pornography. That's how they reason, and that's how this judge reasons."

Lee went on to explain that every judge who's considered the recordkeeping statutes has missed the point... except apparently Judge James L. Buckley (National Review founder William F.'s brother), who wrote the opinion for the District of Columbia Circuit panel in §2257's first case, American Library Association v. Reno (and in which the current Attorney General, Eric Holder, served as one of the government's attorneys).

"When the courts considered the first case [1994], the statute didn't make it unlawful to disseminate material without having the documentation, or to produce the material without creating and keeping the records," Lee explained. "It just raised a presumption that if there were no records, that it was child pornography. That would shift the constitutional burden [that the speech is presumptively protected], which a statute can't do. Now, Congress proceeded to respond to that decision by making it unlawful to produce and disseminate the material without having a certain kind of rebuttal—that is, photo IDs for the performers to prove they're of age. How did that change the situation? A rebuttable assumption would be unconstitutional. Congress then turned around and made it a separate offense to disseminate the material without a rebuttal; that offense is what we know as §2257. Did that change the situation at all? No, it didn't, but since Congress made that change, no judge has tackled that issue, in part because it hasn't been presented to them. But in this case, I made sure it was in the complaint."

"The question is this: When you look at the expression upon which the burden of Section 2257 falls, the question then becomes, how much of it raises the problem that the government may legitimately target?" Lee continued. "If the answer to what problem the government may legitimately target is 'child pornography,' then virtually none of 2257's burden falls on child pornography. To be sure, it covers child pornography, but child pornography is such a small percentage of the pornography that is covered by 2257 that the vast majority of 2257's burden falls on material which does not raise the problem of child pornography; there aren't any kids in it. But the government's comeback is very subtle: The government's comeback is, the real test is whether the material looks like child pornography or might be child pornography. That's where the government's argument shifts gears from combating what is child pornography to burdening what might be child pornography."

"But that's not even a legitimate government goal let alone a substantial one, because what it does is shift the burden of proof," Lee further explained. "What would happen if the government said, in a child pornography criminal trial, 'The burden of proof is on the defendant to disprove that the material is child pornography by producing records, and the records have to be in a certain form'? No court in this country would find that to be constitutional; not one! The government wouldn't even try that. But do you see how the government subtly accomplished the same thing? It just made a separate crime of 'undocumented pornography' so the government can pretend that it's not the same crime, because after all, it's only half the jail time; it's only five years for the first offense instead of ten. Too clever by half! Now, this ploy has been clever enough to evade identification for all these years but this is what the courts have to focus on.

"When the government's objective is properly understood," continued Lee, "Section 2257 is vastly overinclusive; so overinclusive that it fails even intermediate scrutiny. On the other hand, with respect to any government objective to which Section 2257 is narrowly tailored, that government objective is not valid, not even a legitimate government objective, because it relies on very subtly shifting the constitutional presumption. The Constitution's presumption is that expression is protected unless or until someone, usually the government, proves otherwise, and this [§2257] makes it that you go to jail for five years unless you can prove—and not just by any method, but by the government's chosen recordkeeping forms—that it's protected, and that's just wrong."

Sadly, in his opinion, Judge Baylson does indeed ignore §2257's burden-shifting effect, focusing again on the statute's alleged content-neutrality, to which he devotes six pages of the opinion, and which for him makes the cost of complying with the statutes an "incidental effect" rather than one of the central issues.

What is particularly interesting about this section, though, is the verbal gymnastics Judge Baylson uses to argue content neutrality even in the face of the obviously content-based addition of §2257A to the existing §2257 statute.

Having noted Sen. Leahy's previously-referenced comment that the "certification exemption" section of the law was enacted "to excuse from compliance legitimate businesses that have no role in harming children," plaintiffs argued, "If the producer's expression depicted simulated sexually explicit expression, Congress concluded they were legitimate businesses having no role in harming children; if the expression depicted actual sexually explicit conduct, Congress concluded that they were not. That is the epitome of a regulation that exhibits hostility against speech based on its content."

Judge Baylson, of course, disagrees.

"While a producer’s eligibility for §2257A(h)’s exemption is defined in part by the content of the depiction being produced, this Court does not view the commercial exemption as expressing any disagreement with the message conveyed by that content," the judge claims, as if disagreement with the message were at all germane to the issue. The statute, he says, "only provides [the exemption] to those who demonstrate that they are already effectively complying with the statutes’ age-verification requirements.  Thus, §2257A(h)’s exemption provision is primarily oriented, like the statutory scheme surrounding it, toward the permissible and content-neutral goal of 'deter[ring] the production and distribution of child pornography.'"

Yet the exemption is only available to softcore producers, even though hardcore producers may keep the exact same types of records which meet Judge Baylson's (and Congress's) approval!

Having previously ruled that the statutes should not be governed by the strict scrutiny standard, the judge then goes on to explain why the statutes also survive intermediate scrutiny, quoting the Sixth Circuit en banc decision that the statute "ensures that primary producers of pornography confirm that performers are of age before filming them." Sadly, it does much more than that: It puts producers in jeopardy of five years in prison if, even after having looked at a performer's ID to ascertain his/her age, they don't keep copies of the ID for up to seven years, don't index them in a certain way, and don't tack onto the file a copy of the material in which the performer appears.

As for the statute, though the finding of content neutrality doesn't require that §2257 be narrowly tailored to accomplish the government's alleged goal of keeping underage performers out of sexually explicit movies or web content, the law still must bear some relationship to that goal, and the fact that the overwhelming majority of performers don't even look as if they could be minors should make a difference... but it doesn't.

"[T]he statutory scheme depends upon requiring producers to identify and maintain records of every performer who appears in their sexually explicit materials," Judge Baylson quotes Judge Buckley as opining. "The entire point of the Act is to prevent subjective determinations of age by implementing a uniform procedure that applies to all performers." (Seventy-year-old Dave Cummings, come on down! Fifty-one-year-old Nina Hartley, come on down! Forty-three-year-old Tommy Gunn, come on down! Thirty-eight-year-old Lisa Ann, come on down!) (Need we go on? Remember, failure to keep age-verification records on these performers is also worth five years in the slammer.)

In the process of dismissing all of FSC's claims, Judge Baylson also denies them an evidentiary hearing on the scope and severity of the problems with the statutes because, quoting from a couple of earlier cases having nothing to do with sexual speech, "[i]n reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgments of Congress," and "the Supreme Court has also allowed the government to 'justify restrictions based solely on history, consensus, and simple common sense.'"

Plaintiffs also made the point, in the FSC v. Gonzales case, that "[the government] ha[d] failed to advance any concrete evidence to justify [§2257] and [its] regulations, specifically arguing that there is no evidence that regulated producers such as themselves ever create material involving persons under the age of 18, or that the record keeping or labeling requirements impact child pornographers."

Of course, the verifiable truth of that argument falls on the judge's deaf ears: "In light of prior analyses of this issue by the Sixth and D.C. Circuits, the court was 'not convince[d]' by this argument, noting that '[i]t appears undisputed that there is a significant market for pornography involving young-looking performers'"—which, of course, exactly misses the point. Judge Baylson further quotes Judge Miller as "explaining" that, "although I accept that Plaintiffs themselves would not knowingly engage in child pornography, it only makes sense, given extensive demand for pornography involving young-looking performers, to conclude that there is a substantial risk that performers under the age of 18 will be used in such materials."

In other words, to requote Reed Lee's restatement of the government's position, "the real test is whether the material looks like child pornography or might be child pornography."

Tackling the plaintiffs' argument that §§2257 and 2257A are facially invalid under the First Amendment, Judge Baylson actually quotes U.S. v. Stevens, where the Supreme Court (but apparently not Judge Baylson) recognized that, "In the First Amendment context, however, this Court recognizes a second type of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep."

So in other words, even if it were legitimate to require adult companies to keep identification records (and go to prison if they don't) because kids appearing in porn would be a Bad Thing, the fact that such recordkeeping has not once produced any evidence that underage performers are being used in porn movies should invalidate the law.

Judge Baylson even quotes the Third Circuit case of Gibson v. Mayor & Council of City of Wilmington, again unwittingly bolstering the charge that the law is overinclusive: "Although the Supreme Court has not explicitly listed the factors to be considered in an overbreadth analysis, those factors have been identified as the number of valid applications, the historic or likely frequency of conceivably impermissible applications, the nature of the activity or conduct sought to be regulated, and the nature of the state interest underlying the regulation." The "likely frequency of conceivably impermissible applications" is, of course, 100 percent, since no children appear in the adult industry's sexually explicit movies, while the "number of valid applications" is equally likely to be zero.

But the judge proceeds to ignore those rulings, peppering his opinion with irrelevancies from the Williams and (New York v.) Ferber cases about other impermissible uses of kids in sexual works that supposedly undercut what the high court said—even though Ferber specifically recommended using young-looking adults if kids needed to be portrayed in sexual situations—as well as noting that in the Connection case, the en banc court claimed to have had "no record, and therefore no context, for assessing the substantiality of this overbreadth problem" as relates to ads in swinger magazines—but if there's one thing the adult movie industry has, it's plenty of IDs showing that its performers are adults.

Nonetheless, even after those excellent citations, the judge still finds that, "this Court sees no basis for finding the statutes substantially overbroad either 'in an absolute sense' or 'relative to [their] plainly legitimate sweep'."

The judge also refuses to accept the plaintiffs' Supreme Court-affirmed holding (in the Ashcroft case) that "[t]he 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," claiming that §§2257 and 2257A don't target speech at all, but merely "impose content-neutral regulations on the production of certain expression in order to prevent the sexual exploitation of children." Of course, as we've seen, the statutes don't even do that—but what they do is drive up the costs of producing the "protected speech," thereby causing there to be less of it—an outcome about which the Supreme Court would take a very dim view.

Judge Baylson also tackles the plaintiffs' arguments that the statutes destroy performers' right to anonymous speech, but he quotes Judge Miller to the effect that the cases cited by the plaintiffs "both addressed laws impacting political speech, which ... is viewed differently than pornography under First Amendment case law" (but of course, that still doesn't make §2257 a content-based regulation!), and Judge Baylson also argues that performers don't really need anonymous speech unless there is "a reasonable probability that the compelled disclosure of ... names will subject them to threats, harassment or reprisals from either Government officials or private parties." The judge is then apparently unfamiliar with the fracas several months ago on adult message boards about a person who claimed to be a "secondary producer" looking for §2257 records, who in fact merely wanted them for his personal gratification. The judge is also apparently unfamiliar with how many stalkers porn stars have to deal with when they go on the dance club circuit—stalkers who have committed assaults and rape!

Several other aspects of the judge's decision in this case have been dealt with above, and several others, like the plaintiffs' claims that §2257 disclosures amount to compelled testimony against themselves, and that the records inspectors have the power to seize evidence of felonies during the inspection process, are termed to be "not ripe," since none of the plaintiffs has yet been prosecuted using any compelled or collaterally-discovered evidence—and besides, it doesn't matter, since the law only has to further a "legitimate government purpose."

AVN has learned that Free Speech Coalition and at least two of its attorneys, J. Michael Murray and Lorri Baumgardner, will be meeting shortly to discuss what further actions the plaintiffs may take in this case—whether to appeal the decision directly to the Third Circuit Court of Appeals, or to ask Judge Baylson to reconsider his opinion in light of the burden-shifting issue that was raised in the complaint but not discussed anywhere in the opinion—or some other course.

Keep checking back with to learn what further actions may be taken in this very important case.