PHILADELPHIA, Pa.—This morning, J. Michael Murray and Lorraine R. Baumgardner, the attorneys for Free Speech Coalition and the 15 other plaintiffs in the long-running lawsuit against the federal record-keeping and labeling law, 18 U.S.C. §§2257 and 2257A (henceforth, just "2257"), filed their brief dealing with the case's First Amendment issues.
The brief comes in the wake of the Third Circuit U.S. Court of Appeals ruling last June striking down the law's Fourth Amendment violations, which had granted FBI inspectors the unconstitutional power to conduct warrantless searches without notice of any adult producer suspected of having used underage performers in its productions, and ordering trial Judge Michael M. Baylson to reconsider his previous ruling on the First Amendment issues in light of their decision.
"In prior phases of this litigation, the constitutionality of 18 U.S.C. §§2257, 2257A and their implementing regulations, 28 CFR §75.1 et seq., were evaluated as content–neutral provisions under intermediate scrutiny," the brief begins. "The case has now been remanded for their evaluation as content–based regulations under strict scrutiny."
The U.S. Supreme Court case that prompted the change from intermediate to strict scrutiny was Reed v. Town of Gilbert, involving a local rule prohibiting certain religious signage to be posted on city streets, supposedly because such signs interfered with traffic flow. However, the law exempted politically oriented signs, thus making the law "content-based," which the high court had previously ruled requires consideration using strict scrutiny. The Third Circuit found that strict scrutiny should also be applied to the 2257 laws.
“Content–based regulations are presumptively invalid, and the Government bears the burden to rebut that presumption,” the Supreme Court said in U.S. v. Playboy Entertainment, and Murray quoted that statement in the plaintiffs' brief.
Originally, the Third Circuit had accepted the government's argument that the 2257 law was content-neutral and need only survive intermediate scrutiny; that is, that the law simply further an important or substantial government interest; that such interest was unrelated to the suppression of speech; and that the restriction was "narrowly tailored" so as not to suppress more speech than necessary to further the government's aim.
However, after Reed, the Third Circuit agreed that 2257 had to be examined under strict scrutiny: That the law serve a "compelling governmental interest or goal"; that the law again be "narrowly tailored" to achieve that interest/goal; and that the law be the least restrictive means of doing so.
In the brief, Murray cites a number of U.S. Supreme Court cases dealing with strict scrutiny, including U.S. v. Stevens, the dog-fighting videos case; U.S. v. Alvarez, about the constitutionality of the Stolen Valor Act; Ashcroft v. Free Speech Coalition, the Child Pornography Prevention Act case, and several others where strict scrutiny had been applied.
"Under strict scrutiny, a legislature’s 'predictive judgments,' or 'ambiguous proof,' will not suffice to satisfy the Government’s burden to produce evidence of the 'actual problem' or of a direct causal link between it and the expression sought to be regulated," Murray argued after noting that the government had failed to prove that adult producers had ever intentionally used minors in their productions.
"The problem Congress sought to address was not the use of youthful–looking adult performers in sexually explicit expression, but rather the risk that 'children were being used in pornographic materials'," Murray added. "So in order to satisfy strict scrutiny, the Government must prove that the adult film industry’s use of youthful–looking performers in many of their productions has actually and directly led to the use of minors in those productions. The record, however, establishes no such thing."
AVN covered the trial in the 2257 case, and at no point did the government claim that minors had been used in adult productions, only young adults, though several of its experts stated that they thought some of those young adults could be confused for minors.
"The Government’s case is, therefore, built on a sleight of hand," Murray argued. "It has taken the effect of the statutes—verification that young adults appearing in sexually explicit expression are of age—and posited that as its interest. And based on that re-stated interest, the Government argues, the prevalence of young adults in that expression demonstrates proof of the problem. ... Again, the actual problem the Government must prove is the prevalence of minors in sexually explicit expression, not the prevalence of young adults. ... While the Government introduced hundreds of images of sexually explicit conduct depicting youthful–looking adult performers, not a single one depicted a minor."
Murray went on to argue that not only do minors not appear in adult industry productions, there is no link between adult movies featuring young-looking adults and the production of child pornography, the exact problem the 2257 laws were meant to address. Moreover, he noted that adult producers have been checking their performers' IDs for more than 35 years—at least a decade before the 2257 law was first enacted—in order not to fall afoul of existing child pornography laws, and that the few underage performers who had managed to sneak into the industry had done so with real (if fraudulently obtained) government IDs—just the sort of IDs that producers are required to keep under 2257, and which exempts them from prosecution under 2257 if they do keep them in proper order.
"The individual Plaintiffs also testified they were emphatically opposed to the use of minors in the creation of sexually explicit expression and had always taken measures to verify that the subjects of their work were adults—absent the statutes’ requirements," Murray stated. "The Government did not dispute their testimony."
Murray next argued that requiring ID collection from performers who could never be mistaken for children—for example, all of the MILFs currently on talent agency rosters—showed that 2257 is hardly "narrowly tailored" to achieve the government goal; another requirement of strict scrutiny.
"The statutes’ overreach is further magnified by their application to individuals who play no part in the production of sexually explicit expression," he added. "Secondary producers—who only publish or reproduce sexual imagery created by others—must, nevertheless, obtain photo identification of the persons depicted in it—even if the expression is a movie featuring performers like 54–year–old [Nina Hartley] who has performed in adult films for decades—or face criminal prosecution under the law."
Finally, the brief turns its attention to the question of whether the 2257 laws are the least restrictive means to accomplish the government's anti-child porn objective—and easily finds that it doesn't.
"There are a number of effective, less restrictive alternatives to the statutes’ recordkeeping and labeling requirements that protect against the use of minors in the production of sexually explicit expression," Murray stated, listing among others the child pornography laws; the "certification procedure" enacted in 2257A, the "Hollywood version" of 2257 where mainstream producers of sexually oriented content merely have to certify to the Attorney General that they keep records of their performers' ages; and existing adult industry procedures, which have long required ID checks in conjunction with model releases. He also suggested that the law could exempt non-commercial productions and secondary producers, or pass a law requiring the retention of photo IDs but which allowed only for "administrative sanctions" rather than prison time for failure to do so.
Finally, Murray included a section in the brief discussing whether the statutes are "overbroad," a question intimately related to narrow tailoring.
"The statutes apply to sexually explicit expression—actual and simulated—without regard to the actual or apparent age of the person depicted," Murray noted. "They apply to private expression—sexting, bedroom videos and portraits, posts on member–only adult websites—produced by husband and wives, life partners, and adults seeking romance. They apply to artistic expression, educational expression, political expression, journalistic expression. The universe of the statutes’ application is broad and expansive.
"When that universe is compared to the amount of speech regulated by available, effective[,] less restrictive alternatives, the statutes’ overbreadth becomes clear," he continued. "Federal and state laws criminalizing child pornography apply only to sexually explicit expression depicting minors. By comparison, the statutes encroach upon a substantial amount of constitutionally protected expression."
Finally, Murray briefly addressed the government's contention that neither Free Speech Coalition nor the American Society of Media Photographers had standing to challenge 2257 on behalf of their members without those members being required to join the suit individually.
"Under strict scrutiny—in contrast to intermediate scrutiny—the participation of the Free Speech Coalition’s and the American Society of Media Photographers’ individual members is not required," Murray stated. "The statutes’ constitutionality does not depend on their application to particular members, but rather on whether the Government can overcome the presumption of unconstitutionality by showing they are narrowly tailored to serve a compelling governmental interest and employ the least restrictive means of doing so. Both organizations can represent their members with regard to that evaluation without the participation of their individual members. They, therefore, satisfy all three requirements for associational standing."
All in all, Murray makes an excellent case for striking down the 2257 laws under the strict scrutiny doctrine based entirely on pre-existing law and the evidence presented at trial. The government will have 45 days to file a response brief, and at some point thereafter, Judge Baylson will have the option of issuing a ruling on the issue or calling for oral argument, and it is not known which path he will take. However, given the instructions laid down by the most recent Third Circuit ruling, it appears that the judge will have little option but to declare the 2257 laws unconstitutional.
