PHILADELPHIA, Pa.—First Amendment attorneys J. Michael Murray and Lorraine R. Baumgardner have filed their response to the U.S. Department of Justice's (DOJ) opening brief in its appeal of Judge Michael M. Baylson's decision in the federal record-keeping and labeling lawsuit, better known simply as "2257."
The filing of the briefs was delayed for more than two months on account of the government shutdown earlier this year, with the government filing its brief in late March, and Free Speech Coalition, The American Society of Media Photographers, Sinclair Institute and other plaintiffs in the original case (now referred to as Appellees/Cross-Appellees) filing their response this morning.
In its brief, filed March 27, the DOJ attorneys reiterate their argument that the record-keeping laws, 18 U.S.C. §§2257 and 2257A, are necessary to prevent producers of sexually explicit material from using underage performers, despite the fact that the existing child pornography laws easily perform that same function for anyone who distributes adult material commercially, and producers in the commercial adult industry make it a point to verify performers' ages so as to avoid getting busted and serving years of prison time.
After a lengthy period of claims and counterclaims in U.S. District Court in Philadelphia, a lengthy trial, dueling briefs regarding what should be the legal outcome of that trial, and more than one trip by the parties to the Third Circuit Court of Appeals, Judge Baylson issued his final ruling in early August of 2018, saying basically that while the 2257 record-keeping (and labeling) requirements could apply to the company plaintiffs in the lawsuit, it was unconstitutional "as applied" to the individual plaintiffs—and then expanded that ruling to issue an injunction against the government applying the 2257 law to anyone who sold sexually explicit material commercially in the U.S., while still mandating that those producers would be required to check performers' age before lensing them. He also ruled that "secondary producers"—those that have no contact with the performers but simply sell the product—were exempt from the record-keeping requirements. The judge had also previously ruled that the warrantless searches allowed by 2257 were unconstitutional, a decree that has not been challenged by either side. (A search on AVN.com of "2257" will reveal the full history of this case.)
"The district court’s ruling guts the statutory scheme Congress designed to prevent the victimization of minors in the production of pornography," the government brief states. "Congress required producers like plaintiffs to check sexual performers’ ages and identities as only the first step of a comprehensive age verification system that operates at every level of pornography production. ... With the recordkeeping and labeling provisions excised, only primary producers must (or can) satisfy themselves that sexual performers are of age, and there is no way for law enforcement officials to verify that a sexual performer is at least eighteen years old." Apparently the government isn't aware—or is simply ignoring the fact—that almost all commercial producers keep age records as part of their model release package, and such are available to law enforcement with a valid subpoena. The necessity of keeping such age records forms a large part of the government's brief.
The DOJ indicated that it was particularly upset with the fact that 2257 had been injuncted nationwide, covering all producers of explicit material: "The nationwide injunction is especially unjustified because the ten [individual] plaintiffs are highly atypical pornography producers; artists, journalists, and educators who depict youthful models, but have no pronounced preference for producing images depicting the young or very young. The record before the district court showed, by contrast, a strong market preference for pornographic images showing the sexual activity of individuals who look young or extremely young."
In any case, the government is challenging both the individual plaintiffs' exemption from 2257 and the overall nationwide injunction of applying 2257 to any commercial producer.
The DOJ brief then spends the next 48 pages attempting to justify overturning Judge Baylson's rulings, claiming that record-keeping isn't really a burden on the plaintiffs' First Amendment rights, despite the bureaucracy and expense needed to carry out that record-keeping, and that the Third Circuit itself shouldn't have required that, even in the wake of the Supreme Court's ruling in Reed v. Town of Gilbert, Judge Baylson examine the law under strict scrutiny where it previously had used intermediate scrutiny, a much more lenient standard for the government. The DOJ is particularly unhappy that 2257 is injuncted for all producers, since "The nationwide injunction also makes it unnecessary for any other plaintiff to sue, giving the district court’s order a preclusive effect that improperly prevents important constitutional issues from percolating among the courts of appeals before Supreme Court review becomes urgent or necessary." As if every possible constitutional issue hasn't already been litigated in this case, and as if enough money—hundreds of thousands of dollars—hasn't already been spent on fighting this nonsense law!
And as for the fact that pretty much everyone collects age documents with model releases, the DOJ argues, "Even if every pornography producer were to insist upon model releases for each performer and image, the district court would still have erred in mistaking producers’ voluntary business practices for an adequate substitute for mandates imposed by federal law. When Congress chose to implement an effective, verifiable method for distinguishing legal pornography from child pornography it had no obligation to rely on pornography producers to police themselves." Dang, times do change, don't they?
"Relying on pornography producers’ model releases would be ineffective in any event, because pornographers’ model releases are not kept in a regulated system of records, and sexually explicit materials are not labeled to show where the model releases are kept." Yeah, think how tough it would be to find the studio's address or contact info on the DVD box or website and actually call/email them to set up a time to inspect the asked-for records!
Next, the DOJ seriously argues that despite the fact that secondary producers usually have no contact with performers, they should keep records on them anyway, because after all, "Congress, moreover, has made a considered judgment that recordkeeping by secondary producers is essential. ... Secondary producers, to be sure, are not the people 'actually making pornographic images of minors.' But Congress chose to 'afford protection to minors through every level of the pornography industry.'"
Finally, the government argues extensively that Judge Baylson overstepped his power by issuing a nationwide injunction against applying 2257 to any producer—and, interestingly, doesn't once mention law professor Richard H. Fallon Jr., who had authored an article for the Harvard Law Review arguing that there was nothing stopping a court which had found a particular law inapplicable "as applied" to some plaintiffs, from finding that law similarly invalid as to all plaintiffs similarly situated—as argued by Murray in his pre-decision brief.
By contrast with the government's brief, Murray's goes right to the heart of the matter: Under strict scrutiny, which the Court of Appeals itself mandated that Judge Baylson use, it is stipulated that for a law or regulation to be valid, it must serve a "compelling governmental interest"; must be "narrowly tailored" to achieve that interest or goal; and must be the "least restrictive" means of achieving that interest or goal. 2257 does none of these, and that simple fact negates almost every argument the government makes—and even puts Judge Baylson's ruling in question, since he only injuncted 2257 from applying to adult producers, when he should have invalidated the law altogether.
Or as Murray puts one of the issues in play, "Whether upon finding the Statutes and their implementing regulations failed the narrow tailoring and least restrictive means components of strict scrutiny in certain respects, the district court erred in not striking down the Statutes in their entirety as unconstitutional under the First Amendment and in upholding two of their provisions."
The other two main issues Murray argues are whether plaintiffs/appellees Free Speech Coalition (FSC) and the American Society of Media Photographers (ASMP) should have been recognized as having standing to assert as-applied claims for their members, and whether the implementing regulations for 2257 and 2257A are unconstitutionally overbroad.
"In Reed v. Town of Gilbert 135 S.Ct. 2218 (2015), the Court held that '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,'" Murray begins his "Statement of the Case," noting that before Reed, it was almost routine for courts to consider content-based regulations as possibly justified for content-neutral reasons, thus allowing intermediate scrutiny to be applied to them.
"In evaluating Plaintiffs’ challenge to the Statutes under strict scrutiny, the district court parsed the Statutes, analyzed their various provisions independently, and concluded that most of the provisions were not narrowly tailored nor the least restrictive means of advancing the Government’s interest in protecting children," Murray notes, then enumerates those provisions as alluded to above.
"Plaintiffs agree—as they have from the first day of this lawsuit ... that the government’s interest in protecting children from sexual exploitation is compelling. But 'to recite the Government’s compelling interests is not to end the matter,' Murray writes, citing the 2012 case of United States v. Alvarez. "Rather, strict scrutiny requires the Government to come forward with evidence demonstrating the existence of the problem the Statutes claim to address—minors being used by adult film makers in the production of sexual images—and that regulation of constitutionally protected speech depicting adults will eliminate that problem. The Government produced evidence of neither."
Indeed; as AVN readers will recall, in the early 2000s, the FBI conducted 2257 inspections on more than a dozen adult video and web producers and found that no underage performers had worked for any of them.
Murray also notes that 2257 doesn't distinguish between young-looking performers and obviously older ones (like plaintiff Nina Hartley), nor between commercial producers and people who make their porn at home, or exchange explicit images via their phones and computers, nor "secondary producers" who generally have no contact with the performers—hence violating the "narrow tailoring" requirement of the law. And finally, the plaintiffs had identified several "less restrictive" means by which the government could achieve its stated interest, and which it ignored. Also, since consideration of specific sexual images need not be individually evaluated under strict scrutiny, FSC and ASMP should have been able to challenge the law "as applied" on behalf of all of their members.
Over the following 46 pages of his brief, Murray expands on the above arguments, citing a number of Supreme Court cases which bolster his points, including ones dealing with sexual content on cable TV and phone sex businesses, violent video games, "indecent" images on the internet (COPA), and several others.
What follows are some salient quotes from Murray's arguments in the brief (with citations removed but emphasis retained):
On "compelling government interest": "The problem Congress sought to address was 'the risk that children were being used in pornographic materials' as a result of adult film makers' use of youthful-looking adults in their productions. So in order to satisfy strict scrutiny, the Government was required to prove that the adult film industry's use of youthful–looking performers actually made the risk that minors would be used in sexually explicit materials a reality. The record, however, establishes no such thing. At trial, the Government focused its evidence—not on the appearance of minors in sexually explicit expression—but rather on the appearance of young adults in that expression. The latter is constitutionally protected, the former is not. ... The Government’s case is, therefore, built on a sleight of hand.
"Here, in addition to failing to demonstrate the actual problem the Statutes were enacted to address, the Government has failed to offer evidence establishing 'a direct causal link' between the production of adult movies and the production of child pornography. The Court in Entertainment Merchants determined the Government's evidence had demonstrated 'at best some correlation' between violent video games and harmful effects on children, which was not enough to carry its burden. Here, the evidence fails to make even that showing. The unrebutted evidence produced by Plaintiffs demonstrated that adult film makers and photographers creating sexually explicit expression commercially simply do not use, and never have used, underage performers in their work."
On "narrowly tailored": "The Statutes apply to 'whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image' depicting actual or simulated sexually explicit conduct. That language defines the scope of all of their burdens: Their age verification, recordkeeping, and labeling requirements apply to anyone who produces any material depicting sexual conduct, simulated or actual. In short, they apply to every conceivable sexual image. Given the Statutes’ expansive scope, it is no surprise that a number of their applications are problematic. ... It found the Statutes reached 'essentially the entire universe of sexually explicit images, including private, noncommercial depictions created and viewed by adults in their homes.' It also found, based on Plaintiffs' experts' research, 'there may be a significant number of private sexually explicit images shared between young adults' on their cell phones and other devices, and concluded 'there is some substantial amount of private sexually explicit images that the Statutes unnecessarily burden.'"
On "less restrictive alternatives": "Plaintiffs identified a number of effective, less restrictive alternatives to 18 U.S.C. §§ 2257, 2257A, each of which renders them unconstitutional under strict scrutiny. The district court explicitly rejected two of those alternatives: a law limited to people under a certain age and existing state and federal criminal laws punishing the substantive offense of child pornography. It, however, agreed that some of alternatives proposed by Plaintiffs would be effective, less restrictive alternatives to the Statutes" [including] "An age-verification law limited to persons under a certain age who might reasonably appear to be minors"; "A law limited to commercial productions"; "A law limited to 'primary producers' of sexually explicit expression—as opposed to 'secondary producers' who simply publish or reproduce it"; "A certification procedure like that found in 18 U.S.C. § 2257A (h)" [where producers certify to the Attorney General that they keep tax and other personnel records on their employees]; "Industry standards and intellectual property laws"; "Criminal laws prohibiting and punishing child pornography"; "A recordkeeping law enforced by administrative sanction" (as opposed to criminal penalties);
(Each of the above points, which are described as "effective less restrictive alternatives to the Statutes" are fleshed out fully in the brief.)
"If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative. ... To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit." (from U.S. v. Playboy)
Murray then goes on to challenge the trial court's finding that FSC and ASMP did not have standing to challenge 2257 on behalf of their members, noting that although the organizations' members "would otherwise have standing to sue in their own right" and "the interest it seeks to protect are germane to the organization’s purpose," Judge Baylson found that "the degree to which [an] individual producer’s speech is unnecessarily burdened ... required an 'individualized inquiry' into the burdens on specific members," and therefore the organizations were ineligible to represent their members individually.
"On remand, the district court concluded that the organizational Plaintiffs still had not satisfied the third prong of associational standing because it found the narrow tailoring analysis of Plaintiffs’ as-applied challenge under strict scrutiny still required a particularized inquiry," Murray writes. "But the district court was mistaken."
Murray then proceeds to describe the relationship between Free Speech and its members, noting that "Each is subject to and burdened by the Statutes’ age verification and recordkeeping requirements." ASMP's members are all similarly affected.
Regarding the question of whether 2257/2257A are unconstitutionally overbroad, Murray writes, "The Statutes flunk under that measure. They burden a significant body of expression that is far removed from the exact source of the problem they seek to remedy. They 'reach essentially the entire universe of sexually explicit images, "including private, noncommercial depictions created and viewed by adults in their homes."' They impose their restrictions on 'some substantial amount of private sexually explicit images' shared between adults on their cell phones. They burden images—not a 'negligible quantum'—depicting clearly mature adults." QED, one might add, with the same applying to "secondary producers" who rarely if ever come in contact with talent.
Finally, Murray takes up Judge Baylson's injunction prohibiting the government from enforcing 2257 on any adult producer, whether they were a plaintiff in the lawsuit or not, stating that, "Plaintiffs contend that the injunction entered by the district court was warranted by the constitutional issues raised in this case and well within the court’s discretion."
"At no point did the Plaintiffs restrict their challenge to the Statutes as only applied to them," Murray writes. "It would have made little sense to do so. The strict scrutiny evaluation is essentially the same for as-applied and facial challenges. The Statutes’ constitutionality under strict scrutiny rose or fell on whether the Government had satisfied its burden of demonstrating that they were narrowly tailored to serve a compelling interest using the least restrictive means. The court’s determination that the Government had not met that burden with regard to various provisions did not turn on the Statutes’ particular application to the Plaintiffs’ sexual images versus those of other producers. Rather, it depended on whether the Government had overcome the burden of the Statutes’ presumptive unconstitutionality by producing evidence in satisfaction of strict scrutiny’s demands." (Hint: it hadn't.)
Murray includes more discussion on the history of making decisions regarding "as-applied" challenges apply more broadly—and here, he quotes Prof. Fallon's law review article, which at one point states, "No general categorical line bars a court from making broader pronouncements of invalidity in properly ‘as-applied’ cases."
Murray then references several cases which started out with individual plaintiffs, but which led the Supreme Court to invalidate the challenged law altogether, thus freeing whole classes of people and organizations from its burdens.
Or as the Supreme Court ruled in the Citizens United campaign contribution case, "The Federal Rules of Civil Procedure state that (with an exception not relevant here) a 'final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.' And we have held that, if the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is 'proper.'"
In all, Murray's brief does exactly what the government's brief takes pains to avoid: It looks at the overall question of whether 2257/2257A is valid constitutionally under the strict scrutiny standard the Court of Appeals has ruled applies, rather than focusing on the minutae of particular bits of evidence adduced at trail and in various pleadings. And considering that it was the same appeals court panel that ruled on the applicability of strict scrutiny to the case that will decide whether 2257/2257A should be struck down in its entirety now, it would seem that the answer is a foregone conclusion. In any case, let's hope it is—but whatever the Third Circuit decides, a trip to the U.S. Supreme Court is almost inevitable.
The government's brief referenced above can be found here. The appellees/cross-appelles/plaintiffs brief can be found here
