Free Speech Coalition Files Landmark 2257 Lawsuit

PHILADELPHIA—Free Speech Coalition (FSC), the trade organization of the adult entertainment industry, today filed its most comprehensive challenge yet to 18 U.S.C. §§2257 and 2257A, the federal recordkeeping and labeling laws. The suit is being filed in the U.S. District Court for the Eastern District of Pennsylvania, in part because of the positive outcomes experienced in such First Amendment-related suits as the Communications Decency Act and the Child Online Protection Act.

"We're very excited," plaintiffs' attorney J. Michael Murray told reporters at a telephone news conference on Tuesday evening. "We have a very substantial constitutional attack that we're about to file tomorrow on behalf of the Free Speech Coalition and some 14 other very, very excellent plaintiffs, all of whom are burdened by what we regard to be the unconstitutional provisions of 2257 and 2257A and their implimenting regulations. We plan on filing a full scale attack raising several First Amendment issues, some Fifth Amendment issues and we think a very strong Fourth Amendment issue as well, that we plan on filing against the Attorney General of the United States Eric Holder."

"We're going to file a motion for a preliminary injunction together with an extensive brief in support of it," Murray continued, "outlining many but not all of our constitutional attacks on this statutory scheme, and we're going to ask for an evidentiary hearing. And our hope is promptly, though not immediately, but sooner than litigation normally takes, we hope the court will set it down for a hearing and we'll put on our extensive evidence that we think will demonstrate the constitutional defects in the statutory scheme, and hope is that we will prevail and obtain relief."

Joining FSC in its challenge are 14 additional plaintiffs, ranging from adult producers and performers to sex educators, to adult webmasters to fine-arts photographers and photo-journalists.

"We have adult and non-adult plaintiffs," noted FSC executive director Diane Duke, "everywhere from producers and distributors on the adult side; performers to photographers, trade association for journalistic photographers, and sex educators on the non-adult side."

The 36-page complaint spends its first 26 pages identifying those plaintiffs more specifically, detailing how the onerous provisions of the 2257 and 2257A statutes, and the regulations derived therefrom, affect the plaintiffs in either preventing them from exercising their First Amendment speech rights and/or depriving them on their constitution protections under the Fourth and Fifth Amendments.

"The statutes impose substantial restrictions and burdens on a vast quantity of protected expression," the complaint charges, "and consequently, burden, chill and, in some cases, as a practical matter, suppress its production and dissemination."

The plaintiffs suffer from these restrictions in a variety of ways.

"There's the general nature of the burden that is imposed upon all producers of sexually explicit imagery," Murray detailed, "but in addition to that, as an example, we have photographers who are afraid to take some of the photographs of the sexual imagery that they're used to taking because they can't get the photo IDs, they're concerned about the fact that they have to list their homes as the place where the records can be inspected by the government; they indicate that they have to then spend 20 hours a week at home even though they're on the road and simply are not in a  position to comply with the statutory requirements, and therefore they forego taking photographs that they otherwise would."

For instance, sex educator Betty Dodson and associate Carlin Ross host a website that includes a "genital art gallery," to which adults may anonymously submit photos and descriptions of their genitalia. But under 2257, Dodson was forced to ask her contributors for photo identification documents, which not only led to halt in photo submissions, but required the pair to take down about 2,000 images of genitalia for which they could not obtain IDs.

Inability to obtain IDs has also prevented photographer plaintiffs Barbara Alper and Michael Barone from creating books of their work because until they sought to publish their photos, they didn't need the IDs, and now are unable to locate some models. Additionally, Alper believes that some subjects whom she can locate might not want to provide identification data that might wind up in government records.

Similarly, Dr. Carol Queen, who teaches classes in photography, has seen a decrease in participation because potential students and models fear that their identities may be disclosed to government inspectors simply because they appear nude or in sexual conduct in their photographs.

"[Anonymity] is certainly one of the issues that we are raising in this lawsuit," Murray stated. "It's one of the issues that was in part litigated in the Connection [Distributing] case, and you may recall that the four judges who filed dissenting opinions all seemed to agree that the right to anonymous speech was seriously infringed by this statutory scheme and we think their reasoning is persuasive, we think it's strong, we think it's correct and we think another court will find value in that reasoning and hopefully will adopt it... There are two pretty leading Supreme Court cases that establish the right to speak anonymously as part of the First Amendment, so yes, we intend to press that issue in this litigation."

Queen also suffers because some of her work includes conducting "masturbat-athons" which are streamed over the internet, the purpose of which are to "decrease the stigma surrounding sexuality and masturbation." But while she can collect IDs from her participants, she is not able to apply the necessary 2257 labels to them while they're appearing in the streaming video, and she fears prosecution for that lack.

The phrase "as a practical matter" is deceptively simple but, as the plaintiffs' descriptions explain, applies to nearly every independent contractor in the group. For example, performers Dave Cummings and Nina Hartley operate their businesses out of their private homes, and the regulations' requirement that they be available for inspections of their records 20 hours per week severely hampers their ability to be away sometimes for entire days on movie shoots.

Likewise, the plaintiff members of the American Society of Media Photographers, the complaint notes, "are on the road for months at a time [and] are simply unable to maintain and categorize the records as the statutes and regulations require" and often do not maintain regular business hours. Their professional lives, therefore, suffer from the 20-hours-per-week requirement which, the complaint charges, "requires them to be forever in proximity to their records or face criminal sanction."

Another burden faced by one plaintiff is the irrational requirement that a "copy of the depiction" be maintained with each photographic subject's ID documents. Dave Levingston takes between 2,000 and 3,000 shots of each of his subjects during photo shoots and, the complaint charges, "The cost of copying each image and maintaining an index and cross-reference as required by the regulations is prohibitive."

Similarly, as sole proprietorships, Cummings, Hartley and owner Tom Hymes are unable to afford the administrative costs associated with complying with the compiling and indexing of the required records. Even the Sinclair Institute, another plaintiff that produces sexually explicit videos, has found it difficult to devote its few employees' time to maintain the records in the prescribed manner—and failure to follow the regulations to the letter can mean five years in prison for the recordkeeper.

Distributors like plaintiff Channel 1 Releasing face similar problems, in that besides keeping records on the performers in videos the company produces itself, it must also keep records on the performers in each of the 2,000 titles it offers for sale through its website and retail store.

Sometimes, the problems faced by plaintiffs fall outside the mainstream. For instance, photographer Barbara Nitke's chosen subjects are practitioners of what 2257 refers to as "actual or simulated sadistic or masochistic abuse"—terms the law never bothers to define. Hence, although Nitke's images often contain no sexual activity at all, the vagueness of the statute's wording may cause her to run afoul of it simply because she cannot know whether a particular image fits its (non-)definitions. Moreover, since as the complaint notes, "sadomasochism... has a large amount of stigma attached to it," Nitke fears that her models may be "at risk of being exposed and stigmatized for being involved in such work" by anyone who gains access to the identity records the government forces her to keep.

And finally, writer/photographer David Steinberg is suing in part because he wants to effect U.S. distribution of Cupido, a Norwegian journal of erotic art and prose, but cannot because the magazine contains erotic photos by European photographers who don't keep the records required by U.S. law, and therefore the magazine cannot include the required 2257 label.

The lawsuit also contains charges that are common to all the plaintiffs, most notably the simple fact that although each of them deal only with completely legal material involving consenting adults, the law forces them to keep records whose alleged purpose is to stop the sexual abuse of children, thus "seriously and deliberately burden[ing] a vast amount of expression which is not that and which is thus constitutionally protected," according to Count One of the complaint.

Moreover, the statute forces the content creators and sellers to prove that their subjects are not underage, thus "expressly or implicitly shift[ing] the burden of proving constitutional protection vel non to the speaker, instead of leaving it on the party contesting such protection, which is where the First Amendment places it."

"I think the primary overbreadth argument is going to relate to the millions and millions of examples of constitutionally protected speech that is being unnecessarily burdened by all of these recordkeeping and labeling requirements; burdened for reasons that don't exist," Murray explained. "You may recall the so-called point of the statute is to combat child pornography and yet none of our plaintiffs does anything that remotely resembles child pornography; they're all unalterably opposed to child pornography and they create adult erotic speech that has value and is clearly protected by the Constitution and is not the type of speech that placing a burden on it will in any way help combat child pornography. So the overbreadth argument primarily will relate to the fact that the burden of the regulations falls on constitutionally protected speech that does not implicate any of the problems that Congress supposedly had in mind when it adopted this set of regulations. Keep in mind it now applies to simulated sexual images because of the addition of 2257A which is also being challenged in this lawsuit, so the universe of speech that is now burdened by these regulations is vast and we submit that there is no legitimate governmental interest that is furthered by burdening that vast quantity of protected speech."

Indeed, the FSC complaint touches almost every issue ever raised about the legality and workability of 2257 and 2257A, including that they do not advance a compelling governmental purpose nor are the least restrictive means of accomplishing it; that the law unconstitutionally exempts simulated sexual speech from the same recordkeeping and labeling requirements that it requires actual sexual speech to follow; and that the recordkeeping and labeling are prior restraints on constitutionally protected expression, since no sexually-oriented work featuring only adults can be distributed unless records are kept in the prescribed manner down to the tiniest detail and the precisely prescribed label affixed to the work.

The complaint also charges violations of creators' and distributors' Fourth Amendment rights, since the statute allows "authorized inspectors" (which the law never defines) to "conduct searches and seizures of persons' homes, studios and/or offices–without warrant or notice," and allows them to "copy any of the records and to seize any evidence of a felony–without limitation on the scope of the search or seizure"—all clear constitutional violations. And since those records (or lack thereof) can be used to prosecute defendants criminally for violations of the federal obscenity laws, the mere requirement that such records be kept violates the plaintiffs' Fifth Amendment rights as well.

The complaint and accompanying briefing were scheduled to be filed this morning at the federal courthouse at 601 Market Street, but it was unclear when further actions will be taken on the suit.

"In a federal lawsuit involving First Amendment rights where a request is made for a preliminary injunction, typically, the federal courts are sensitive to that," Murray advised, "and subject to normal scheduling problems, requests by the government or even the plaintiffs for more time, we think that there's a reasonable chance that there would be a hearing set in the next few months, but it's hard to say for sure... We are raising issues in this lawsuit that have never been raised in any other litigation at all."

Murray said he doubted that a hearing would be held on the requests for preliminary and permanent injunctions before the end of 2009.

Just what effect the filing of the lawsuit will have on future 2257 investigations is unclear. Several First Amendment attorneys have opined that the Justice Department had possibly been holding off on records inspections in anticipation of possible Supreme Court consideration of the Connection Distributing case, for which the high court denied certiorari on Monday. However, the prior FBI team, headed by Special Agent Charles Joyner, has reportedly been disbanded, and Joyner reassigned to other duties, so industry attorneys have no information regarding how 2257 inspections would be conducted nor who would conduct them.