Judge Denies Motions for Summary Judgment in 2257 Case

PHILADELPHIA, PA—In a move that reportedly came as a complete surprise to attorneys for the Free Speech Coalition and other plaintiffs in the lawsuit against the federal recordkeeping and labeling law, 18 U.S.C. §2257, as well as those for the defendant, U.S. Attorney General Eric Holder, Judge Michael Baylson today sent a letter to counsel stating that he would deny the Motions for Summary Judgment that each side had filed in the case last Friday.

"The judge said that he would deny the Motions and would send the case to trial on the merits," said J. Michael Murray, the lead attorney for the Plaintiffs, "and he indicated that he will issue a Memorandum early next week explaining his reasoning. But we're very excited about the fact that we are definitely going to trial, and the government will not be given summary judgment in this case, and so we're excited about presenting all of our evidence on both our First and Fourth Amendment claims, beginning on June the 3rd."

Judge Baylson's letter was unexpected in part because in most cases, judges spend days or weeks examining all of the arguments presented in Motions, and in particular, Motions for Summary Judgment, because were the judge to decide to grant one side or the other's Motion, the case would end there, subject to appeal. But the issues raised in the Motions were very complex, and with the judge, who had previously granted only a relatively short period for the attorneys to conduct discovery, having already set a firm timetable for the start of the trial, the ruling against both sides' motions could be seen as a sign that he expects the issues raised in the Motions to be argued at the trial in a more dynamic exchange between the parties.

At issue at the trial will be whether the 2257 law is unconstitutionally overbroad, in that it includes sexually explicit videos and web fare of persons who are unquestionably adults and would never be mistaken for minors, and also encompasses far more material than just that produced by the adult entertainment industry. Some of the imagery covered by 2257 and its companion 2257A include sexually explicit photos sent via cellphone ("sexting"); home videos made by husbands and wives, or girlfriends and boyfriends, which are meant to be used either for their own private pleasure, or to be traded with other like-minded couples; websites that allow couples or singles to stream sexual activities for the enjoyment of other remote viewers; photos and videos that appear on social networking sites; privately-commissioned sexy photographic portraits; internet webcasts of the yearly Masturbat-a-thons; documentaries of adult performers or others whose stories involve explicit sexual activities; and many more. All of the above are technically covered under 2257 or 2257A, thus requiring recordkeeping of the participants and labels affixed to the end products identifying who keeps those records and where, but at this point, the laws have only been applied to adult video producers and webmasters.

Also dealt with at the trial will be the Fourth Amendment violations committed by those charged with inspecting adult companies' records—at last count, 29 companies, all in 2006, none of which reportedly passed such inspection on the first try. (Some of the "violations" included such minutae as failure to keep the records in alphabetical order.) The 2257/2257A laws provide that the companies to be inspected are given no prior notice of the inspections, and the inspections are done without a warrant having been issued by a judge in response to a law enforcement officer's recitation of probable cause. (Reportedly, out of roughly 2500 adult performers whose records were checked, only one was alleged to be of a minor, and since that claim was dropped by the Justice Department before any legal proceedings could be started, it is likely that on further checking, the identification of a minor turned out to be a mistake.)

Another problem with the law is that any company or person producing sexually explicit content must make his/her/its records available for inspection at least 20 hours per week, and one of the Plaintiffs' allegations is that for individuals who webcam or take photographs that would be covered under the law, it may be nearly impossible for those entities to set aside 20 hours of their week to wait for that possible knock on the door from 2257 inspectors.

There are many other issues dealing with the Plaintiffs' First and Fourth Amendment rights included in the Motions for Summary Judgment, but apparently, those too will now be dealt with at the trial.

Since the costs of freeing the adult industry from the expensive and time-consuming burdens of 2257/2257A are already in the hundreds of thousands of dollars, Free Speech Coalition has asked that all personnel in, and fans of, the adult industry donate however much they can to offset these expenses. Donations can be made online here, or a check or money order can be mailed to Free Speech Coalition, P.O. Box 10480, Canoga Park, CA 91309.