PHILADELPHIA, Pa.—The fight the Free Speech Coalition has been waging against the federal record-keeping and labeling laws (aka "2257") has been a long one. Not Hundred Years War long, but pretty damned long. It was back in August of 2004 that Free Speech filed comments regarding the then-new 2257 regulations promised by then-Attorney General John Ashcroft following an embarrassing appearance before Congress where he admitted that the 2257 law had never been enforced, and completed by his successor Alberto Gonzales. FSC announced that it intended to challenge the new regs in May of 2005, and filed that suit roughly one month later in Colorado. The legal team at that time consisted of Attorneys H. Louis Sirkin, Paul Cambria and Michael W. Gross, and in December of that year, U.S. District Court Judge Walker D. Miller ruled that despite the new regs, secondary producers need not keep ID records on movies they distributed, though primary producers, including webcam models, were required to keep copies of the sexually explicit material they generated. (Of course, later changes to the regulations reinstated the secondary producer record-keeping requirement.) However, in general, his decision reinforced the legality of 2257 as a concept.
But Free Speech wasn't the only entity fighting 2257 at that time. Attorney J. Michael Murray, the lead attorney in the current 2257 case, had been fighting his own battle with it since the late '90s, in connection with his client Connection Distributing Co., a publisher of swinger magazines which objected to being forced to make its contributing swingers' names and addresses public. Murray won his case, and in October of 2007, a three-judge panel of the Sixth Circuit Court of Appeals agreed. However, on further appeal by the government, the full Sixth Circuit overturned its panel's decision in early 2009—and Connection went out of business.
All that leads up to Free Speech filing another lawsuit, this time against not only the 2257 regulations, but against the law itself—and it chose none other than J. Michael Murray to lead that litigation, which commenced in October of 2009.
We won't go into further details as to the course of that litigation—those interested need only search "2257" on AVN.com—but suffice to say the lawsuit was dismissed once before eventually being reinstated, and has been before the Third Circuit Court of Appeals at least three times on one issue or another—the most recent of which resulted in the appeals judges determining that the law needed to be examined under "strict scrutiny," meaning that in order for it to be upheld, the government needed to establish that the law served a compelling governmental interest or goal, that it was sufficiently narrowly tailored to accomplish that interest or goal, and that it was the least restrictive means to achieve that goal. For the most part, Judge Baylson found that the government had failed to justify the law in most respects.
Along with his Final Judgment and Decree, Judge Baylson also issued a Memorandum discussing the reasons behind his decision, much of it the result of input from the attorneys for both sides which began with their proposed Final Judgment Entries filed the first week of July 2018, and concluding with a telephone conference between the parties held on August 1, which discussion was based on a series of questions which the judge had emailed to the parties earlier that day.
Judge Baylson begins his Memorandum by noting that he had earlier, on May 21, dismissed both plaintiffs Free Speech Coalition and the American Society of Media Photographers from the lawsuit regarding the as-applied challenges to the law due to their alleged lack of standing to participate in that phase of the suit. He also at that time denied the plaintiffs' facial overbreadth challenge, while granting the ten individual plaintiffs their challenge to the 2257 law "as applied."
One of the plaintiffs' main contentions in its proposed Final Judgment, as AVN earlier noted, was that although the court had denied their facial challenge to the law, law professor Richard H. Fallon Jr. had authored an article for the Harvard Law Review arguing that there was nothing stopping a court which had found a particular law inapplicable "as applied" to some plaintiffs, from finding that law similarly invalid as to all plaintiffs similarly situated. Hence, if the court found 2257 unconstitutional as applied to the ten plaintiffs here (as it had), then that unconstitutionality could and perhaps even should be applied to all persons who found themselves in the same situation as the ten plaintiffs—in other words, the entire adult content-producing industry. Murray noted that even the U.S. Supreme Court had looked favorably on Fallon's logic, citing it in its decision in the Citizens United case which struck down barriers to political campaign contributions by corporations. But even though the government had argued that only the ten individual plaintiffs should benefit from his finding of the unconstitutionality of 2257 as applied to them, Judge Baylson nonetheless issued an injunction barring the government from applying the 2257 law to not only the individual plaintiffs, but anyone who performed the same functions that they did in the adult industry.
Judge Baylson then tackled the justification of his ruling by examining several Supreme Court cases which the government claimed supported its position, including U.S. v. Raines (1960), a case in which officials in Georgia were sued under the Civil Rights Act for racial discrimination against African-Americans seeking to register to vote. While the district court had dismissed the lawsuit as overbroad under the Fifteenth Amendment, the Supreme Court resurrected it, but ruled that while the Georgia officials had discriminated, and while that portion of the Act may have been unconstitutionally overbroad, the district court should still not have struck down that portion of the Act.
Another case Judge Baylson considered was Gonzales v. Carhart (2007), where several district courts ruled that the Partial Birth Abortion Act, which banned a certain type of abortion, was unconstitutional because it contained no exception for the health of the (potential) mother. The Supreme Court reversed, ruling 5-4 that the plaintiffs should not have brought a facial challenge to the law, but rather an as-applied challenge, because the law generally did "not impose an undue burden" on women's ability to obtain abortions.
Judge Baylson then considered some more recent cases, one of which was Whole Woman's Health v. Hellerstedt (2016), which challenged Texas' ability to mandate that two abortion clinics require their physicians to have admitting privileges at local hospitals, and that the facilities themselves be upgraded to meet the standards for an ambulatory surgical center, neither of which is necessary to perform abortions safely. After a win on both objections at the trial level, the Fifth Circuit reversed, ruling that a prior losing challenge to the law before it went into effect barred Whole Woman's Health from raising the matter again, except as regarding the two plaintiff clinics here, claiming that if the Fifth Circuit allowed the district court to grant relief, it would be granting "more relief than anyone requested or briefed." The U.S. Supreme Court essentially called the Fifth Circuit's "logic" horseshit, since the clinics, in addition to their other claims, had also asked for "such other and further relief as the Court may deem just, proper, and equitable," which allowed the district court ruling to be expansive—and which, Judge Baylson later noted, was essentially the same phrase also pled in Free Speech's 2257 case.
As particularly applicable to the current 2257 case, the high court ruled in Whole Woman's Health that, "Nothing prevents this Court from awarding facial relief as the appropriate remedy for petitioners’ as-applied claims." [Emphasis in original]
The final case the judge considered for his ruling was Knick v. Twp. of Scott, a 2017 case in which a landowner had sued the township because one of its officials had entered her property without a warrant and looked for evidence of an old burial ground there. She also claimed that a township ordinance opening such graveyards to the public amounted to an unconstitutional taking of her land under the Fifth Amendment. When the case reached the Third Circuit, it ruled that the township official's "search" had been of an open field, and therefore there was no Fourth Amendment violation, and in dealing with her facial challenge to the township ordinance under the Fifth Amendment, the Third Circuit panel discussed the distinctions between as-applied and facial challenges—and took advice from the Supreme Court's Citizens United case and the same law review article they had quoted therein, Prof. Richard Fallon's.
"As a general matter … there is no requirement that a facial challenge be accompanied by an as-applied challenge. Litigants with standing to challenge a law have considerable 'flexibility ... to shape the issues in litigation,'" the Third Circuit had written, quoting Fallon. "Litigants may argue that the law cannot be constitutionally applied to them due to some particular set of facts or circumstances (an as-applied challenge), that the law is unconstitutional in every application, including their own (a facial challenge), or both…"
The judge also noted that the Third Circuit panel in the Knick case had quoted its own ruling in the Free Speech Coalition case, where it noted, "the plaintiffs demonstrated an imminent risk that they would be subjected to an allegedly unconstitutional inspection regime. Their rights likewise turned on the facial validity of the law in question."
But taking his cue from the Supreme Court's opinion in Whole Woman's Health, Judge Baylson noted that, "under Count I, Plaintiffs assert that the Statutes and Regulations are unconstitutional both facially and as applied. The facial challenge to the Statutes’ constitutionality, as pled in the Amended Complaint, was therefore not limited to a facial overbreadth theory, which was pled in Count III," and again noting that, "As in Whole Woman’s Health, in their prayer for relief, Plaintiffs requested '[s]uch other legal and equitable relief to which Plaintiffs may appear entitled.'"
Finally, Judge Baylson concluded, "For a number of independent reasons, the Court has decided to grant the form of relief as requested by the Plaintiffs. In the first place, this is not a single plaintiff case. In some of the cases the Defendant relies on, there have been only one or a few plaintiffs, and the facts alleged are common to all plaintiffs. Here, as noted above, there are numerous Plaintiffs, representing many different aspects of the adult pornography industry. The Plaintiffs could have, and perhaps should have, brought the case as a class action, but the absence of a class does not, as a matter of law, limit the Court’s ability in issuing a final decree that is fair to the parties and represents the legal reasoning as set forth by this Court in several existing opinions, and in several opinions by the Third Circuit.
"This entire litigation was supported by many different plaintiffs involved in basically all aspects of the adult pornography industry," Judge Baylson continued. "The Plaintiffs include producers, performers, artists, promotors—and the trial testimony disclosed their activities in significant detail. Thus, the Court’s decision, holding at least some aspects of the Statutes and regulations, invalid under the First Amendment, considered, in practical effect, a trial record concerning all aspects of the adult pornography industry. Indeed, in the recent recorded telephone conference with counsel, Government counsel could not detail any aspect of the adult pornography industry that would be unaffected by this Court’s ruling, and still be subject to valid and constitutional enforcement of all aspects of the Statutes in the future. In addition, the Third Circuit has already struck down one aspect of the Statute as unconstitutional under the Fourth Amendment, and although it did not enter a final judgment, the clear import of the Third Circuit’s ruling was that the Government could not enforce the search and seizure provisions of the Statute against anyone, not just the individual Plaintiffs."
Judge Baylson went on to specifically note the several references to Prof. Fallon's article, stating, "He [Fallon] describes what is basically a doctrinal and jurisprudential quagmire, resulting from confusions in decisions of the Supreme Court and the Circuit Courts. This Court concludes, in its discretion, that there is no longer a strict dividing line between the relief that would be proper when a statute is facially unconstitutional, as opposed to a statute being declared unconstitutional 'as applied.' The Supreme Court has basically noted with approval many of the points made by Professor Fallon and the underlined sentence in the Whole Woman’s Health case, above, gives this Court authority to enter the relief sought by Plaintiffs."
The import of that relief can be found here. Free Speech Coalition, which has fought for relief from the onerous 2257 laws for more than 14 years, would appreciate any donations to that ongoing effort. Such donations may be made here.