Free Speech Coalition Files Appeal of 2257 Suit Dismissal

PHILADELPHIA, Pa.—First Amendment attorneys J. Michael Murray and Lorraine R. Baumgardner, on behalf of the Free Speech Coalition and 14 other plaintiffs, today filed an appeal of Judge Michael Baylson's ruling last July dismissing the plaintiffs' lawsuit challenging the constitutionality of 18 U.S.C. §2257, the federal recordkeeping and labeling act.

To a large extent, the appellants' brief, which was filed with the Third Circuit U.S. Court of Appeals, restates arguments made in the Motion to Reconsider filed by Murray and Baumgardner last August, and nothing in the intervening six months has made those arguments any less valid.

Briefly, those arguments are:

1) The 2257 law and regulations fail the test of intermediate scrutiny, in that the statutes "do not directly and materially advance the government’s interest in combating child pornography," the brief states. The statute is not narrowly tailored to achieve the government's stated purpose in enacting the law, but rather is "narrowly tailored to achieve an illegitimate governmental interest in requiring all producers of expression to establish that their expression is not child pornography, thus reversing the constitutional presumption conferred on all expression required by the First Amendment. Moreover, the statutes are overinclusive and burden substantially more speech than is necessary to advance its avowed interest in battling child pornography."

2) The statute also doesn't survive the strict scrutiny test, in that it is clearly content-based. The law affects only actual sexually explicit speech while specifically exempting simulated sexual speech from the same regulations if the creator of such simulated speech merely files a letter with the Attorney General of the United States stating that the producer keeps certain identity and tax records as a regular course of doing business—something which producers of actual sexually explict speech also do, but cannot avail themselves of the same exemption.

3) The statute violates producers' Fourth Amendment rights against unreasonable searches and seizures, since it gives government agents free rein to enter producers' premises without a warrant and to search through the producer's records, as well as giving them the power to seize any "evidence" of what the agents may perceive as felonies being committed by the producer, again without a warrant. Worse, refusal to admit the "inspectors" to a producer's premises in itself constitutes a felony under the challenged law.

4) The statute is overbroad, in that it applies to "a vast quantity of private, non-commercial expression between adults."

5) Judge Baylson was incorrect to grant the government's motion to dismiss plaintiffs Free Speech Coalition and producer Dave Cummings from participation in the suit based on the rulings by Judge Walker Miller in the 2257 lawsuit filed several years ago in the District of Colorado, and which was later dismissed without prejudice by agreement of both parties.

"The district court, in reviewing Defendant’s Motion to Dismiss, was to accept the actual factual allegations (as opposed to legal conclusions) of the Complaint as true and was required to determine 'if they plausibly suggest[ed] an entitlement to relief'," the appellants' brief argues. "The question before the court was not whether there was a probability that the factual allegations asserted a claim, but rather whether taken as a whole, they presented a plausible claim for relief. The Complaint at issue here clears that bar with room to spare." [Citations omitted here and below]

"This is particularly so in a case such as this that challenges, on First Amendment grounds, laws regulating speech," the brief continues. "In such cases, it is the government that bears the burden of proving that a law that regulates expression comports with constitutional requirements.  To that end, the government bears the burden of demonstrating, at minimum: (1) the existence of the problem which it claims the regulation addresses; (2) the regulation advances its goals in addressing that problem; and (3) the regulation is narrowly tailored and does not burden substantially more speech than is necessary."

The brief goes on to argue that there are currently no commercially-released sexually explicit videos containing performances by minors, since contrary to government claims, adult producers do make sure their performers are adults; that there's no evidence that children are even attempting to appear in adult producers' creations, at least in part because anti-child pornography laws work, as evidenced by the increasing number of such prosecutions; and as is obvious by looking at a wide variety of currently-available videos, only a small percentage of them feature performers who could conceivably be mistaken for children.

Most important, however, is the argument that the law essentially shifts the burden of proof regarding allegations of child pornography from the government to every adult video producer, whether that person/company employs young-looking performers or not.

"The statute in this form requires all producers of sexually explicit expression to demand and maintain records proving–on penalty of criminal sanction–that their expression depicts adults and is, therefore, protected expression," the brief argues. "Put another way, the statute imposes the burden on producers of sexually explicit expression (expression that is presumptively protected by the First Amendment) to prove that their expression is not unprotected–by requiring them to maintain records and label their expression in consonance with the statute’s dictates. And thus, the statute effectively and definitively reverses the presumption of protection that the First Amendment confers on all expression."

Several of the appellants' arguments draw on both the findings of the original three-judge appeals panel of the Sixth Circuit in Connection Distributing v. Holder, which found the law to be unconstitutional, and also on the dissents by those same judges and others when the Sixth Circuit agreed to an en banc reconsideration of the Connection decision and ultimately reversed the panel's ruling.

"The regulation at issue in this case, §2257, does not apply solely to child pornography," noted Judge Karen Nelson Moore in her dissent to the Sixth Circuit en banc ruling. "It applies to a class of materials much broader than those depicting what Congress ultimately seeks to prevent, and therefore does not seek to advance Congress's ultimate goal directly, or even as directly as § 2252's prohibitions on distribution, receipt, and possession of child pornography. Instead, Congress seeks to supplement these existing bans by imposing age-verification and record-keeping requirements on all visual depictions of actual sexually explicit activity, regardless of the age of the performers. In this regard, the means employed by §2257 are distinguishable from, and significantly broader than, those employed by §§2251 and 2252."

More subtle, though, and more significant is how 2257 shifts its burden onto adult producers to prove they aren't using children, and Murray and Baumgardner (with the assistance of attorney/constitutional expert Reed Lee) call attention to this scam through reference to the Supreme Court's decision in Simon & Schuster, Inc. v. Members of the New York State Crime Board.

"Here, the proper inquiry is: are the statutes narrowly tailored to achieve the government’s interest in suppressing child pornography?" the appellants ask. "Simon & Schuster requires that the exact same interest must satisfy both the significant interest and the narrow tailoring inquiries.  If the interest shifts for narrow tailoring purposes after another interest (or even what seems to be merely another version of that interest) has been found sufficient, the reformulated interest must again be subjected to sufficiency analysis.  And if that interest—no matter how well it fits the imposed burdens—is found wanting, the challenged statute cannot survive... The district court below committed the error that the Supreme Court condemned in Simon & Schuster. The court below determined that the Government’s interest in suppressing child pornography is substantial. It further concluded that the challenged statutes were narrowly tailored—not to its interest in suppressing child pornography, but rather to the Government’s interest in having all producers establish that their expression is not child pornography. The interest to which the court found the statutes were narrowly tailored was different than the interest it found served as their justification under the first prong of the intermediate scrutiny analysis." [Emphasis in original]

"In this case," the argument later continues, "the interest to which the district court found the statutes were narrowly tailored (compelling producers of sexually explicit expression to establish that their expression is, in fact, protected depictions of adults and not child pornography) amounts to a reversal of the First Amendment's presumption that expression is constitutionally protected. Since a statute may not reverse a constitutional presumption, the only interest to which the challenged statutes are narrowly tailored is illegitimate. The statutes fail to pass constitutional muster on that ground. On the other hand, if, as Simon & Schuster instructs,  the statutes are properly measured against the Government's  interest in suppressing pornography depicting actual children–the interest offered to justify the statute under the first prong of intermediate scrutiny, the challenged statutes are not narrowly tailored but are unconstitutionally overinclusive."

As noted above, the appeal targets other flaws in 2257 that were also charged in FSC's original lawsuit before Judge Baylson, but its success will likely hinge on the Third Circuit's ability to understand the fundamental argument stated above.

Of course, since the Justice Department will have an opportunity to respond to FSC's appeal, which it is likely will take more than 60 days to prepare, the adult industry's fight against 2257 still has a long way to go. Be sure to check back with for more news of this fight as it occurs.

A copy of the Appelants' brief is available here.