PHILADELPHIA, PA—After a lengthy trial in front of U.S. District Judge Michael Baylson last June, Free Speech Coalition and 15 other plaintiffs were dismayed that the judge's ruling, which was released on July 18, 2013, dismissed nearly all of the industry's concerns about the federal record-keeping and labeling laws, 18 U.S.C. §2257/2257A (hereafter, simply "2257"), and vowed to appeal. Now, a briefing schedule has been set for the lawsuit's second trip to the Third Circuit Court of Appeals, and the opening salvo, the Appellants' Brief, was filed with that court today.
The brief, filed by plaintiffs'/appellants' attorneys J. Michael Murray and Lorraine Baumgardner, identifies three main points that it would like the appeals court to review: 1) "Whether 18 U.S.C. §§2257, 2257A and their implementing regulations are unconstitutional under the First Amendment because they are not narrowly tailored to advance the government’s interest in protecting children from sexual exploitation, as intermediate scrutiny requires, and consequently burden substantially more of Plaintiffs’ constitutionally protected speech than necessary"; 2) "Whether 18 U.S.C. §§ 2257, 2257A and their implementing regulations are facially unconstitutional under the First Amendment because they are overbroad"; and 3) "Whether 18 U.S.C. §§ 2257, 2257A and their implementing regulations are unconstitutional under the Fourth Amendment because they authorize warrantless searches without probable cause and do not satisfy the requirements of the administrative search exception."
Referring often to the points the Free Speech plaintiffs made through their witnesses during the trial, the brief first recounts the alleged purposes of 2257/2257A and how the statute and its implementing regulations have been put into practice against the adult industry and other media dealing with sexually explicit and simulated sexual materials. One major point that the summary makes is that the labeling requirement for "lascivious exhibition of the genitals or pubic area" has been interpreted to include "any frontal nude image of a person in what might otherwise be called an 'erotic' pose," and may even include images of people who are dressed by posing seductively—or just posing.
The brief also lists the evidence that the Third Circuit, in its ruling on Judge Baylson's original summary dismissal of the lawsuit, asked plaintiffs to bring out ("adduce") at trial, which included an attempt to contrast the number of "legitimate statutory applications" of 2257 with the number of "problematic" ones; evidence of the number of emails, sexts and other "noncommercially-produced depictions of sexual images" subject to the statutes: and details of the records inspections already conducted by the FBI's team of inspectors and how plaintiffs' Fourth Amendment rights may have been violated by such searches.
While Judge Baylson rejected the plaintiffs' claim that 2257 should be examined under the doctrine of "strict scrutiny" regarding 2257's application to the adult industry, the brief notes that even under "intermediate scrutiny," a lesser standard, the government must still demonstrate that the laws further that interest [assuring that minors are not used in adult productions] in a narrowly tailored way and do not burden substantially more speech than necessary."
"The evidence in this case demonstrates that a substantial majority of Plaintiffs’ expression depicts persons who are obviously adults and could not reasonably be confused as minors," the brief states. "The statutes and regulations, accordingly, are not narrowly tailored to the government’s interest in protecting children from 'sexual exploitation by pornographers,' and burden substantially more speech than is necessary. Moreover, the effect of the statutory scheme is to improperly reverse the constitutional presumption of protection conferred by the First Amendment and shift the burden to the producer to prove that his images are not child pornography. The statutes, therefore, fail to pass constitutional muster under intermediate scrutiny."
That "revers[al of] the constitutional presumption of protection conferred by the First Amendment" is a legal argument that was only touched on during the testimony at trial, but is certainly one of the crucial aspects of the lawsuit. Child pornography laws already exist, and no legitimate adult producer would knowingly use a minor in a XXX production, yet the record-keeping requirements of 2257 require those producers to act as if any performer might be a child, and to keep voluminous, time-consuming records of people they know not to be children simply because 2257 presumes that any performer might be a child—even folks like 74-year-old Dave Cummings and the younger-but-clearly-of-age Nina Hartley.
Worse, as was brought out at trial, 2257 applies to any depiction of actual humans engaged in sexually explicit conduct, including webcam shows, intimate photography or videos created by couples for their own enjoyment, sexy Skype sessions between consenting adults, and even "sexts" sent by one adult to another via a smartphone—not to mention fine art photography and even occasionally news photography and/or video footage of news events.
The brief then details some of the testimony about these points, including Free Speech Board Chair Jeffrey Douglas' statement that it would be "utterly mindless" for a porn producer to use a minor, and that record-keeping imposes "impossible demands" for wholesalers and retailers trying to use producer-supplied materials to promote sales in stores or in websites—testimony backed up through the personal experiences of webmaster Tom Hymes and actress/director/webcammer Nina Hartley.
The brief also points out that although anti-porn activist Gail Dines, whom Judge Baylson himself described as "very biased" against the adult industry, did a Google search for "teen porn," which the government inferred was a term used by people searching for underage material, her figures give no evidence about how the number of "teen" websites compares to the number of sites featuring obviously adult content.
"Dines herself acknowledged that the portion of expression depicting performers who might be confused as minors was substantially outweighed by the amount of expression depicting performers about whom there was no confusion," the brief states. "She testified that based on the data available to her—that being data gathered from the 'top-rated porn sites'—her 'best estimate as to the percentage of that material that depicts adults who are youthful looking enough to be confused as possibly minors is approximately one-third.' In other words, Dines concluded that the amount of constitutionally protected expression depicting adults who could not be confused as minors was approximately 67 percent of the sexually explicit expression posted on the most trafficked commercial pornography websites, or twice the amount of the expression depicting youthful-looking performers who, based on their apparent ages, were not obviously adults." [Emphasis in original]
The brief also notes that Dr. Daniel Linz, a sociologist from UC-Santa Barbara, performed a similar search and concluded that "the quantity of expression depicting those who could reasonably confused as minors, based on their apparent ages, compared with the quantity depicting obviously mature adults is very small—only about ten percent of all commercial sexually explicit expression."
The brief also deals with the testimony of "pubertal maturation" expert Dr. Francis Biro, who admitted during cross-examination that "generally speaking, someone who is 25-years old or older will not be confused as someone 17-years old or younger, and that nearly everyone who has reached the age of 30 will not be confused as a minor," adding more credence to the appellants' vagueness (and also its overbreadth) argument.
Also detailed in the brief is how some of the other plaintiffs/appellants use sexual imagery in their work, and how that is affected by 2257—like for instance sex-positive activist and educator Betty Dodson, who had to remove her "genital art gallery" from her website over 2257 concerns, and how fine-art photographers like David Steinberg, Barbara Alper and Dave Levingston have balked at including 2257 labels on their nude photo studies—and that in any case, the vast majority of the photographers' and videographers' models were 26 years old or older.
Interestingly, the brief makes reference to the recent First Amendment/campaign financing Supreme Court case of McCutcheon v. U.S., which found that the only legitimate government interest for restricting campaign finances was "preventing corruption or the appearance of corruption," which the court defined narrowly as "quid pro quo" corruption, like paying a bribe. The brief goes on to note that the only "legitimate objective that the statutes purport to advance is the protection of children from exploitation by pornographers," and that the government's only response to that is that all constitutionally-protected sexual speech should be burdened by 2257 because it would be child porn if there were children in it—an incredible "putting the cart before the horse" argument, since in the 25-plus random inspections the government conducted in the mid-'00s, no underage performers were found.
"It’s important to emphasize that under the First Amendment, all speech is presumed to be protected, and the speaker cannot be made to bear the burden of proving otherwise," the brief importantly states. "When the government seeks to impose sanctions on expression, it is the government that bears the burden of showing that it is not protected. The burden of proving that the expression is protected under the First Amendment cannot constitutionally be shifted to the photographer or film maker who produced it—which would reverse the First Amendment’s presumption of protection. That, however, is what 18 U.S.C. §§2257, 2257A do: they require producers of expression to create and maintain a record of the age of each and every person depicted in their expression to prove that it is not child pornography." [Citations removed here and below; emphasis in original]
The brief then talks about the research conducted by government witness Janis Wolak, which noted that most child porn is created by people related to or at least acquainted with the subject children, and that most of it is traded on pee-to-peer networks.
"Wolak’s description of the nature of the production and distribution of the vast bulk of child pornography shows exactly why the statutes—whose burdens fall heavily, if not exclusively, on sexual expression depicting adults—fail to serve their function of protecting children from sexual exploitation 'in any meaningful way'," the brief states, referencing the McCutcheon decision for that last quoted phrase.
He next section of the brief delves into the cost, in both time and money, and also in some cases the impossibility of gathering and maintaining 2257 records on sexual depictions—moreso for individual proprietors like Nina Hartley, Barbara Nitke and David Steinberg, who would fine it difficult to both make a living and be available for possible FBI inspections 20 hours per week—and the fear that if they hired a third-party record-keeper, that they themselves would be criminally responsible for any errors committed by that record-keeper.
Turning to the appellants' overbreadth arguments, the brief notes that the statutes "burden a substantial amount of private expression," including not only those image creators noted above, but also individuals posting to Instagram or taking part in Facetime Sex Chat, not to mention posting on dating sites like AdultFriendFinder. The brief notes that at least one sociologist found in a recent study that 30 percent of respondents had admitted to having sent "a sexually suggestive nude or nearly nude photo or video of themselves to someone else" on their cellphones—and 40 percent admitted having received such images! The brief also deals with the government's objections to the researchers' sampling practices, and notes that even one of its own witnesses agreed that the sampling was legitimate.
Much of the final fifth of the brief deals with the Fourth Amendment violations written into the 2257 statute, noting that "All 29 inspections were conducted without a search warrant and without probable cause to believe that a crime had been committed," including six at private homes (the one practice Judge Baylson's ruling prohibited), while the others were performed in "private areas of business premises to which the general public was not given access–private offices, employee break rooms, locked file rooms," not to mention off-site private storage facilities. The brief also describes the behavior of the inspectors in carrying out the inspections, which themselves contributed to the Fourth Amendment violations—most notably the warrantless seizure of documents. The brief further notes that the "administrative search exception" does not apply, even quoting one of the appellate judges from the appellants' first Third Circuit opinion to that effect.
"[T]he warrantless inspection regime created by sections 2257 and 2257A is not necessary to further the statutes’ purpose," wrote Appellate Judge Marjorie Rendell in 2012. "This is not a case where the government must conduct random, unannounced inspections of a business premises to ensure health and safety."
In fact, FBI chief inspector Charles Joyner even testified that his inspection team had allowed adult companies to supplement their records after the search because "their goal was for producers to 'have good records'." Not exactly the words of someone who's worried that records will be destroyed prior to a search!
"The one thing I would add is, it's important that the brief demonstrates the magnificent record that we were able to compile in the trial court with so many magnificent witnesses and plaintiffs, including the Free Speech Coalition and the outstanding testimony by Jeffrey Douglas, as well as from Gene Mopsik, executive director of the American Society of Media Photographers, and the enormous contributions by the individual plaintiffs, ranging from Nina Hartley to Tom Hymes to Dave Cummings and many of the photographers—David Steinberg, Barbara Nitke, Carol Queen, Barbara Alper, David Levingston—and of course Betty Dodson and her partner Carlin Ross, who were wonderful witnesses, and of course Dian Wilson of the Sinclair Institute was marvelous, and our expert witnesses were great," said attorney J. Michael Murray in an interview with AVN. "The brief that we filed was really a testament to all of the plaintiffs and the Free Speech Coalition for representing the industry in this extremely important attack upon the constitutionality of these onerous, burdensome laws that are still on the books, and that threaten the very existence of the industry if and when the day comes again—and it will—that the FBI begins to initiate additional searches and seizures and inspections, unless we prevail."
The Appellants' Brief in the case of Free Speech Coalition, et al v. Attorney General Eric Holder can be found here.
