DOJ Tries to Make the Case That FSC Doesn't Have a 2257 Case

PHILADELPHIA, PA—As agreed during the waning days of the trial of Free Speech Coalition, et al. v. Holder, where plaintiffs aim to strike the federal recordkeeping and labeling laws, 18 U.S.C. §§2257 and 2257A, from the law books, both the plaintiffs and defendant filed their post-trial briefs almost simultaneously. But what neither did, though, was to follow Judge Michael M. Baylson's suggestion that both parties keep their briefs short.

While it's unclear who wrote what in the three briefs filed by the seven U.S. Department of Justice (DOJ) attorneys who signed onto them—trial counsel Kathryn Wyer, Hector Bladuell, Nathan Swinton and James Schwartz, as well as their superiors at the Department, Stuart Delery, Zane Memeger and Anthony Coppolino—they certainly suggest that multiple hands were at work.

Interestingly, the defendant's main brief begins by arguing that plaintiffs Tom Hymes and Dr. Carol Queen should be dismissed from the lawsuit altogether because they lack the "standing" to sue—but rather than quote from the most recent Supreme Court ruling on standing, Hollingsworth v. Perry, the California Prop 8 suit, they go with another recent case, Clapper v. Amnesty International USA, where the high court stated that standing "serves to prevent the judicial process from being used to usurp the powers of the political branches."

But while the government admits that, "Where a plaintiff seeks injunctive relief from a law that has never been enforced against him, this 'pre-enforcement plaintiff' must demonstrate 'an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and ... a credible threat of prosecution thereunder,'" its argument that Hymes has abandoned his intention, absent 2257 recordkeeping, to add sexually explicit content to his still-viable website rings hollow in light of Hymes' testimony at trial, as does the government's attempt to delegitimize Queen's claim that but for 2257 requirements, she would still be webcasting Masturbate-a-thons, even though the last few have been held in venues that did not lend themselves to such webcasting.

But then the brief moves on to one of its main arguments, that the plaintiffs have failed to demonstrate that the statute, as applied, does not comply with the requirements of "intermediate scrutiny"; namely that the statute does not "burden substantially more speech than is necessary," which the courts have ruled means that the statute must be "narrowly tailored" to suit that legitimate governmental purpose.

"The universality of the requirements, applying to all depictions of 'sexually explicit conduct' created after a specified date, without regard to the apparent or actual age of the persons depicted, is reasonable because any other alternative would introduce 'an ineffectual subjectivity' into the regulatory scheme," the DOJ attorneys claim, ignoring the fact that their own witnesses have placed the percentage of performers who might be confused as minors at no more than 33 percent, with plaintiff witnesses claiming that the percentage is even lower than that.

"If producers were required to check age verification documents only when they thought there was uncertainty regarding whether the individual was an adult or a minor," the DOJ argument continues, "producers would have to rely on their subjective judgment in applying that requirement. It would be difficult for these producers to reliably assess the ages of performers without checking performers' identification documents." The trouble with that argument is, plaintiffs have conceded that virtually all producers would check performer IDs even absent 2257, because as noted yesterday in plaintiffs' post-trial brief, no producer wants to use an underage performer if for no other reason than that child pornography laws exist, and they'd rather not spend upwards of a decade in prison for violating them.

But the DOJ's main argument is that since within a certain age range—roughly 14 to 25—it isn't always easy, especially for lay people like producers, to tell whether a person is an adult or a minor, and so therefore, all sexually explicit content should be subjected to the onerous recordkeeping and labeling requirements of 2257, apparently because the DOJ thinks it makes it easier for the FBI to identify underage performers—none of whom were found in the 29 inspections they carried out in 2006-7.

But of course, despite the overinclusiveness of that requirement, the "ID them all and let God (or the government) sort it out later" still shifts the presumption of innocence away from adult producers, unconstitutionally requiring them to prove that no actor in their content is underage; that is, to prove a negative.

Hence, though the government brief spends a couple of pages arguing that no adult producer uses so few young-looking performers that it could qualify for an age-related exemption from 2257, all that says is that if an FBI inspector believes a particular performer is underage, it will have to prove it using common law enforcement investigative techniques—and as previously noted, nothing in 2257 requires an adult producer to be able to distinguish a genuine-looking false ID, much less a fraudulently-obtained actual government ID, from a legitimate one.

With that huge flaw in the government's logic, its arguments that some plaintiffs haven't even asked for an as-applied exemption, or that others who have testified that keeping and cross-indexing and labeling all of their performers and content, and being available for inspection 20 hours per week is a huge burden on their lives and businesses don't deserve relief from those burdens, all fall flat. Similarly, the government dismisses plaintiffs' complaints that it is impossible to attach a 2257 label to some works, that the label in some cases forces some plaintiffs to reveal their home addresses, and that some plaintiffs are unable to be available 20 hours per week for inspections as trivia that are easily dealt with.

And check how the government responds to the charge that even a minor 2257 violation can result in prison terms of up to ten years: "Of course, the statutory provisions do not require that every regulatory violation be prosecuted, nor that every prosecution result in a five-year prison sentence. There is no precedent for holding a statute unconstitutional under the First Amendment based solely on the severity of the maximum penalty set forth in the statute, before the plaintiff has even been charged with a violation. To the contrary, courts have recognized the deterrent effect of a criminal penalty as a legitimate end, even in the First Amendment context where any such penalty 'will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of [protected] material'." [Citations omitted here and below]

What's almost laughable is that the citation from the end of that quote is from Alexander v. United States, where adult bookstore and theater owner Ferris Alexander, having been convicted of "racketeering," obscenity and tax fraud, was forced to forfeit all of his businesses and assets at an estimated total worth of over $9 million—a ruling that was widely condemned by not only the adult industry, but by anti-censorship groups countrywide.

Equally laughable is the government's contention that it wouldn't use recordkeeping errors by third party recordkeepers against the producer that owned the records, because, "As defendant explained during those earlier proceedings, '[s]trict liability is generally disfavored in criminal law, particularly with respect to cases that implicate the First Amendment,' so the fact that the statutory text omits a mens rea ['guilty mind'] requirement 'will not be construed as eliminating that element from the crimes denounced'." In other words, the basic government argument is, "Watsamatta? Don't you trust us?" Right!

Oh; and the government doesn't care if the "producer" is a fine-art photographer or a sex educator; their theory is that everybody gets to share the same pain. Likewise, it doesn't care if any plaintiff swears up and down that he/she has "no intention to produce child pornography," because their "behavior is not the relevant benchmark for a generally applicable regulation," and the "validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government’s interests in an individual case."

In other words, everybody, no matter how innocent, gets to share the same pain.

Occasionally, the government really puts its foot in its mouth, as with its argument that the court should rule for the defendant in plaintiffs' overbreadth claim—the claim that 2257 actually targets not only commercial adult content producers, but every sexter, sexual Skyper, amateur sex photographer, Facebook poster, Instagrammer, Twitterer and every other conceivable way that ordinary people create and exchange sexually explicit images with each other.

"A statute may be struck down on its face only if it 'cannot be applied consistently with the Constitution'," the government brief notes. "In other words, a law may be struck down only if it is 'unconstitutional in every conceivable application,' or it seeks to 'prohibit such a broad range of protected conduct that it is constitutionally "overbroad"'." Well, aside from the fact that the Constitution doesn't allow the government to shift the burden of proof from itself to a defendant, the simple fact is, the overwhelming majority of adult industry product—including all content produced by adult studios and webmasters—not to mention most of the sexually explicit imagery produced by ordinary citizens (most of whom have never even heard of 2257) is of adults, if for no other reason than that child porn is against the law (and will continue to be, no matter what happens to 2257), so there really is no need for 2257 and all its hoops to be jumped through and trapdoors to avoid—because real child pornographers don't keep 2257 records! So in effect, 2257 is a law that targets law-abiding adult content producers and has absolutely no effect (except perhaps as a bargaining chip at trial) on actual child pornographers.

After having placed its foot in its mouth, the government then proceeds to shoot itself in that foot. How? By identifying "four factors relevant to the overbreadth analysis: '(1) the number of valid applications of the statute, (2) the historic or likely frequency of conceivably impermissible applications, (3) the nature of the activity or conduct sought to be regulated, and (4) the nature of the state interest underlying the regulation'."

Let's remember that since the Meese Commission, which suggested a 2257-like law in its final report, ended its run in 1986, there have been roughly half a dozen underage performers identified in the adult industry, including the most famous, Traci Lords. So what the government is saying is that in order to find those six performers (who, incidentally—except for Lords, who outed herself—were identified by adult producers themselves, with no help from the government), it's okay that the "number of valid applications of the statute" stretches into the millions, if one counts all the non-child performers who have worked in adult since 1988, when 2257 was initially enacted, and all of the movies, webcasts, photo galleries and other non-child sexually explicit content requiring 2257 labels produced since then. And somehow, we think those millions of applications just might provide some evidence to a court of a "historic or likely frequency of conceivably impermissible applications."

Surprisingly (though not so much when one considers the quality of the government's legal scholarship thus far in the case), the DOJ attorneys argue that the court should apply the "Gibson factors," based on a 2004 Third Circuit case, Gibson v. Mayor & Council, where "the court rejected an overbreadth challenge to a directive that required police officers to 'be truthful and forthright at all times,' even though the plain language of the directive potentially applied to any context, including communications between father and son or husband and wife, because the scenarios of supposedly unconstitutional applications advanced by the plaintiff were 'more than slightly unrealistic.' The court emphasized that 'an invalid application that is far-fetched does not deserve as much weight as one that is probable,' and held that 'the number and weight of permissible applications far outweigh the possible invalid applications, if not in number, then certainly in kind'."

So what the government is saying here—without, of course, understanding it—is that despite the fact that government investigators have never found a minor working in an adult movie unless and until that person was pointed out to them by the adult industry itself, which had already rectified the problem, that "the number and weight of permissible applications"—that is, the number of minors found performing in adult content—"far outweigh the possible invalid applications"—that is, all of the inspections done so far, and likely all of them that would be done in the future—"if not in number, then certainly in kind"? The only way that argument makes sense is if the government assumes that legitimate adult content producers all want to include kids in their productions, and only the constant threat of a team of FBI inspectors showing up at their door is stopping them from doing so. And the only trouble is, Judge Baylson has stated several times on the record that he believes that adult producers don't want to use kids, so lots of luck with that argument!

But that logic doesn't deter the DOJ attorneys from spending eight pages claiming that 2257 is constitutional law because there are a lot of young-looking performers out there, and a "vast quantity of sexually explicit depictions" out there that could include minors (if not for, you know, child porn laws), and the fact that the government hasn't yet found an underage performer using 2257 actually proves how good the law is!

Then, the government actually spends a couple of pages arguing that "purely private communications" of sexually explicit material via sexting, Skype, email and similar methods aren't really worth considering since A) if people post such material on Facebook or other social networking sites, they're no longer "private communications," and B) nobody knows how many of those images there are—omitting the fact that the people that create such images mostly have never even heard of 2257, and the government has no conceivable way of alerting them to the fact that their "purely private communications" should be following the 2257 edicts on recordkeeping, etc. Check their argument: "While the Third Circuit has held that the plain language of the statutes do not distinguish between publicly available and purely private images, this Court can still take into account the fact that, as a practical matter, an image that is truly private is unlikely ever to come to the attention of the Government (or anyone other than the couple that privately shares such an image)."

In other words, "Watsamatta? Don't you trust us?"

Finally, the government gets around to the plaintiffs' Fourth Amendment warrantless search-and-seizure claims, and of course, their response is the one plaintiffs deal with in their post-trial brief: the "administrative search exception," which allows agencies like OSHA to search some records of companies that are "pervasively regulated" by the government—and sure enough, not only does the DOJ brief bring up OSHA, but also the EPA. What it doesn't deal with, of course, is the fact that the adult industry is not "pervasively regulated," a prerequisite for such administrative searches.

In attempting to have plaintiffs' "as-applied" challenges to the Fourth Amendment breaches committed by inspectors thrown out, the brief also trots out an argument made during the trial—and rejected by Judge Baylson—that, hey, those inspections were more than five years ago, so plaintiffs have lost their chance to object to them, and besides, "If the Court were to evaluate whether each of the 29 inspections that occurred in 2006 and 2007 comported with Fourth Amendment requirements, its 29 holdings would not justify an injunction as to future inspections under a program that, for all we know, could look very different from the program that briefly existed in the past." Right; it's doubtful that even the government lawyers believe that horseshit.

Nonetheless, even though warrantless inspections are part of the 2257 law, the DOJ attorneys argue that this court doesn't have the power to grant "injunctive relief as to future inspections." Just what does the DOJ think "injunctive relief" is? It's to prevent something from happening in the future based on what's happened in the past! But though it's a virtual certainty that inspections will restart if 2257 is upheld, it's possible that the government is correct that the "asserted injury"—illegal searches and seizures—"must be certainly pending to constitute an injury in fact," and that "[a]llegations of possible future injury" are not sufficient. "The Court rejected the notion that an 'objectively reasonable likelihood' of future injury was sufficient," the brief quotes one Supreme Court ruling as holding. It'll be up to the judge to decide if the plain wording of the statute makes such Fourth Amendment "injuries" "objectively reasonably likely."

The last 10 pages of the government's brief are taken up trying to prove that, "The Inspections That Occurred In 2006 And 2007 Did Not Violate The Fourth Amendment"—and frankly, they do a piss-poor job of it. They put forth two main arguments: A) that the searches were consensual, in that nobody barred the door to keep the FBI inspectors from entering, and B) that they were legitimate "administrative searches" anyway.

Of course, they again ignore the plain wording of the statute, which reads, "It shall be unlawful ... for any person to whom subsection (a) applies to refuse to permit the Attorney General or his or her designee to conduct an inspection under subsection (c)." We can picture the argument now: "Yeah, judge, all those companies and producers allowed the FBI into their businesses or homes because they wanted to, not because the law says they can spend 10 years in the slammer for not doing so!"

The other two briefs filed with the court yesterday were "Defendant's Proposed Findings of Fact," which had its share of non-factual material that plaintiff attorneys J. Michael Murray and Lorraine Baumgardner will likely deal with in their "answer briefs" due on July 7 at the latest, and "Defendant's Answers to Court's Questions of June 14, 2013," which largely repeats the arguments detailed above.

The full text of the defendant's briefs can be found here, here and here.

Check back with later for more analysis of the pleadings in this vitally important case.