PHILADELPHIA—In a brief filed earlier today in the long-running case of Free Speech Coalition, et al v. Holder (though Holder has recently been replaced by the current Attorney General, "The Honorable Jefferson B. Sessions"), which seeks to invalidate the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A (hereafter "2257"), plaintiff attorneys J. Michael Murray and Lorraine R. Baumgardner once again hit home their arguments that forced the Third Circuit Court of Appeals to remand the case once again to Judge Michael M. Baylson with the instruction to consider the evidence under the "strict scrutiny" standard rather than the "intermediate scrutiny" used at trial and in earlier proceedings.
"18 U.S.C. §§ 2257, 2257A, as content–based regulations of expression, are presumptively invalid," the attorneys begin. "To overcome that presumption, the Government must present evidence establishing that the statutes satisfy the exacting standard of strict scrutiny." [Emphasis in original; citations removed here and below.]
From there, Murray and Baumgardner recap the evidence produced during the trial, including the facts that the government has failed to provide evidence that a problem of using underage performers in adult industry productions even exists, much less that 2257 does anything to mitigate that non-existent "problem," noting that, "For decades, the industry has checked IDs and verified the ages of performers to make sure they are adults."
"The Government contends the prevalence of youthful–looking adults in the production of sexually explicit material presents the risk that older minors will also be used in its production," the FSC brief later continues. "The statutes were therefore enacted to address that risk. In defending the statutes under intermediate scrutiny, the Government’s trial evidence focused on the presence of youthful–looking adults in commercially produced sexually explicit expression. It did not, however, produce any evidence demonstrating that minors were actually used or depicted in adult productions."
The brief notes that at a status conference in the case after the Third Circuit ordered its remand, the government was asked if it wanted to add anything to the evidence it had already presented, and it declined to do so. Rather, it cited "predictive judgments" made by various congressional legislators about how useful the law would be, but according to the plaintiffs' attorneys, such evidence is insufficient to survive strict scrutiny, as the Third Circuit explained in its initial decision in the case.
"The State must specifically identify an 'actual problem' in need of solving, and the curtailment of speech must be actually necessary to the solution," the Third Circuit stated, quoting from U.S. v. Playboy Entertainment Group and R.A.V. v. St. Paul.
"The same is true here," Murray and Baumgardner argue. "The Government must come forward with evidence demonstrating that the use of youthful–looking adult performers by the adult film industry leads to the use of minors in the production of sexually explicit expression," adding that there is no evidence either in the legislative record nor in the trial transcript that supports the utility of 2257. They also note that the few underage performers that have managed to appear in adult movies did so by using actual government identity documents—something the 2257 laws do nothing to prevent.
Other ludicrous arguments put forth by the government are that "intuition and logical inference ... support the existence of the problem the statutes address," and that the mere "risk" that minors might somehow inveigle their way into XXX movies should be "logically inferred because 'child pornography continues to exist' and youthful–looking adults are used in the production of sexually explicit expression."
"[T]he Government cannot substitute 'logical inferences' for evidence in meeting its burdens under strict scrutiny," the brief states. "The Government must 'specifically identify an "actual problem" in need of solving' and 'a direct causal link' between the expression and that harm. A 'predictive judgment that the link exists' is not enough to satisfy strict scrutiny."
The attorneys also argue that in order to satisfy strict scrutiny, the 2257 statutes must be "narrowly tailored" to accomplish the government's purpose, and that the evidence adduced at trial shows the contrary. For example, 2257 requires that identification records be kept on "clearly mature performers" even though they could never be mistaken for minors. Moreover, "The court 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’ expert’s research, 'there may be a significant number of private sexually explicit images shared between young adults' by sexting, and concluded 'there is some substantial amount of private sexually explicit images that the Statutes unnecessarily burden.'"
Also needed to satisfy strict scrutiny is proof that the laws in question are the "least restrictive means to advance the government's interest" in preventing minors from appearing in XXX-rated fare, and at trial, several of the plaintiffs' witnesses testified that not only do the adult industry's producers check each performer's ID, but that "The Government has failed to produce evidence establishing criminal laws prohibiting and punishing child pornography are not effective alternatives to the statutes"; that although the producers keep tax and employment records of their actors, in much the same way that mainstream producers do, they are nonetheless unable to avail themselves of 2257A's allowance, given only to mainstream producers, that they need only write a letter to the Attorney General stating that they do keep such records to avoid the onerous record-keeping required of adult producers.
The brief also questions why the government couldn't pass a law limiting record-keeping to "persons who might reasonably appear to be underage," or a law "limited to commercial productions" (which would allow sexting and homemade explicit content to remain unregulated) or at least a law that would require only "primary producers" to keep such records, thereby letting so-called "secondary producers" like web retailers and the like avoid the same onerous record-keeping as those who actually make the content.
In their final substantive points, the plaintiffs' brief argues that 2257 laws are "constitutionally overbroad"—a term related to the "narrow tailoring" requirement—and that contrary to the government's position, both Free Speech Coalition and the American Society of Media Photographers do have standing to challenge the statutes on behalf of their members, noting that in light of the Third Circuit's remand, Judge Baylson should consider the groups' "associational standing" in light of the strict scrutiny standard.
Many of the arguments in the current brief were covered in the plaintiffs' Motion for Judgment to declare the 2257 statutes unconstitutional and that their enforcement be enjoined which was filed last January, and as the current brief makes clear, the government brings no new, valid arguments to the table—but the fate of the lawsuit is still up in the air, and won't be known until Judge Baylson renders his final decision, likely to come sometime this summer.
