PHILADELPHIA, Pa.—First Amendment attorneys J. Michael Murray and Lorraine R. Baumgardner have announced to their clients that they have filed a Petition for Panel Rehearing and For Rehearing En Banc in the case of Free Speech Coalition, et al v. Attorney General of the United States, the lawsuit which sought to repeal 18 U.S.C. §§2257 and 2257A (hereafter "2257"), the federal record-keeping and labeling law. The petition is in response to the ruling by a three-judge panel of the Third Circuit U.S. Court of Appeals issued May 14, which was analyzed here.
The petition draws in part on recent U.S. Supreme Court decisions, most particularly Reed v. Town of Gilbert, a case from Arizona which challenged the government's power to discriminate between street and yard signage that were "ideological signs and political signs" which the town of Gilbert had no legal problem with, and the less-favored "temporary directional signs" which were erected by, among others, churches—a distinction which the Supreme Court found was content-based, though the Ninth Circuit had found Gilbert's ordinance to be content neutral.
"[T]his analysis skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face," the Supreme Court stated. "A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech."
Considering that 2257 applies only to sexually explicit speech, the Supreme Court's decision would seem to directly contradict the Third Circuit's and the trial court's findings that the law is content neutral because its stated intent was to keep underage performers from appearing in sexual speech.
"The federal criminal statutes at issue here are content based on their face," FSC's attorneys argue. "They single out for regulation, a particular category of expression: visual depictions of sexually explicit conduct. In addition, they distinguish between categories of sexual imagery based on content in the same way the town ordinance in Reed distinguished between signs based on their content: expression depicting actual sexual conduct is treated much less favorably than expression depicting simulated sexual conduct." [Emphasis in original]
The attorneys appear to be referring to the fact that under 2257, hardcore depictions trigger a requirement that producers keep photo IDs on all performers and various other types of identifying documents, whereas under 2257A, producers of simulated sexual content may simply file a letter with the Attorney General stating that they keep such identifying materials in their regular course of business for, for instance, tax purposes.
The FSC attorneys also argue that the Third Circuit's ruling conflicts with several other recent high court decisions, not the least of which is the Stevens dog-fight video case as well as McCullen v. Coakley, regarding free speech around women's clinics, and Conchatta v. Miller, a Third Circuit case which Murray himself had argued, which overturned a Pennsylvania statute concerning "lewd, immoral or improper entertainment" at strip clubs.
"Millions of adult Americans are unwitting felons," the petition notes. "Their crime? They have sent constitutionally protected sexually explicit photos of themselves to their partners on their cell phones, made bedroom videos of their sexual intimacies, or posted explicit messages on social networking websites, without complying with the recordkeeping and labeling requirements of 18 U.S.C. §§ 2257, 2257A. They, therefore, face the risk of prosecution for a federal crime."
The Third Circuit had given little attention to the arguments put forth by the non-adult industry plaintiffs in the case, and paid little attention to the experts who testified as to the large and increasing amount of "amateur" sexually explicit material recorded and/or transmitted by ordinary citizens, who for the most part have no idea that they face up to five years in federal prison for not keeping 2257 records.
"Congress enacted the statutes to address a perceived risk that adult film producers, who used youthful-looking performers in their productions, might intentionally or inadvertently use underage performers in their films," the petition notes. "The recordkeeping and labeling requirements were intended to provide law enforcement with a ready means to distinguish minors from youthful-looking adults in this material...
"The very predicate for the statutes—that primary producers of adult films might intentionally or inadvertently use minors in their productions—proved flimsy, however," the petition continues. "For decades, the adult industry denounced the use of minors in adult films for moral reasons, and has rigorously employed measures to assure that their performers were adults for legal reasons, as well as for practical business ones. Producers have long checked identification documents and secured model releases from their performers, as a matter of industry practice—since at least the early 1980s, before the statutes were enacted. During the span of 30 years, there have been only a handful of cases in which underage performers appeared in sexually explicit productions—each of whom gained access by use of a fake ID.
"The statutes’ record of enforcement discloses their inutility," the petition importantly charges. "Between 2002 and 2012, only nine prosecutions were brought under 18 U.S.C.§ 2257; no prosecution has ever been brought under 18 U.S.C. § 2257A. In contrast, for the same period of time, nearly 4,000 prosecutions were brought for child pornography offenses under 18 U.S.C. § 2252A, for which the success rate was 'extremely high.'" [Citations omitted here and below; emphasis in original]
The petition also argues that, contrary to the Third Circuit's analysis, precedent would dictate that a law which swept in as many performers who were obviously adults would easily have been declared overbroad—except for the fact that the law is purportedly directed at sexual performances by minors who clearly have not been in evidence in adult industry productions—and the productions in which they do appear are those of child pornographers who studiously do not keep 2257 records or any other identification records.
"The government 'may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals'," the petition quotes the McCullen court as affirming, while noting that in Conchata, the performances at the strip clubs had no connection to the "harmful secondary effects" alleged in Pennsylvania's law.
The petition also notes that the trial court ignored the "five volumes of sexually explicit personal messages and postings exchanged on adult dating websites and social media–expression created for personal use with no commercial purpose," not to mention "examples of sexual imagery in news stories and documentaries," finding them unrelated to the issues before the court—even though the government's own witnesses admitted that such material could be prosecuted under 2257, and which the plaintiffs here argue would bolster their overbreadth argument.
"The undercurrent running through the panel’s analysis suggests that because it viewed the statutes' recordkeeping requirements as 'minimal,' their unconstitutional applications to protected speech was tolerable," the petition importantly notes—and that's without even considering, as plaintiff witness, attorney Jeffrey Douglas noted, the burdens on "secondary producers" who don't even have any contact with the performers themselves.
The final section of the petition also asks the panel to reconsider (or an en banc panel to consider) its conclusions as to records inspections under the Fourth Amendment in light of the recent Supreme Court decision in City of Los Angeles v. Patel, where the high court invalidated a city statute allowing warrantless searches of hotel registers, allegedly necessary to target prostitution and drug dealing—an ordinance that was "in all material respects, identical to the statutes at issue here."
The entire petition may be read here. Since the government will have an opportunity to respond to the plaintiffs' petition, it is unclear by what date the Third Circuit will rule on the issue.
