PHILADELPHIA, Pa.—Those who've been following the news of the adult industry's unprecedented win in the long-running lawsuit against the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A (hereafter "2257"), may have noticed that an important deadline was passed today. In his decision dated May 21, the federal judge who presided over the trial, Judge Michael M. Baylson, stated in the conclusion to his ruling, "The Court has purposely not attempted to finalize the exact parameters of this relief, in specific language," he wrote, referring to how his decision would affect existing 2257 regulations. "The Court will require counsel to consider these rulings and propose a decree with precise language to carry out the Court’s decision. Even if the parties cannot agree totally on all issues, the Court requests that they attempt to agree on the language the Court should use in its final judgment. If the parties cannot agree, then the Court will require each party to submit their own draft and the Court will make a final decision on the final decree."
Judge Baylson's deadline for the parties to submit an agreed-upon proposed Order to finalize his verdict was Monday, June 4, and if the parties could not agree on the language for the order, each side was to submit its own proposal by today, June 11.
That didn't happen.
When AVN reached out last week to J. Michael Murray, the attorney handling the case for Free Speech Coalition and the 14 other remaining plaintiffs, to question whether a joint proposal would be submitted, he responded that, "The deadlines have been extended. The agreed Order is now due July 2, and if no agreement is reached, each side’s proposed Order is due July 9."
In a conference call held shortly after Judge Baylson's May 22 decision, with participants including Murray, Free Speech Coalition (FSC) Executive Director Eric Paul Leue and this journalist, Murray explained just how the judge's request for both sides' input on the wording of an Order in the case would work.
"What ordinarily happens is, a court will render an opinion, and then in addition to the opinion, there will be a judgment entry that will be the Order that reflects what the opinion stated," Murray said. "In this case, the judge wrote a lengthy opinion and rendered a decision on numerous issues, found that substantial portions of 2257 and 2257A are unconstitutional as applied, but he didn't actually enter the Order that would put that opinion into execution. Sometimes that happens: a judge will write an opinion and say, 'I want the parties to get together and write up a judgment entry that accurately reflects what I just decided,' and so what he's asking us to do is to get together with the government and say, 'Okay, what should the judgment say?' For example, the judgment would say that the court declares section so-and-so unconstitutional under the First Amendment; that would be what would be reflected in a judgment entry, so what he's asking the parties to do is to see if they can agree on what that language should be, but again, both the government and the plaintiffs are confined to what the judge wrote in his opinion. We can't deviate from it. We have to accurately reflect what he wrote in his opinion into this proposed judgment entry. Yes, even that can lead to disagreements among parties in the ordinary course of litigation as to what precise language should be used, but again, it's all going to have to reflect what the judge wrote, so if we can't agree on the precise language, we'll both present proposed judgment entries which will probably not be all that completely different; it'll just reflect some disagreements over particular words or phrases."
The judge's request for the parties to come up with a proposed judgment entry is yet another layer to a case that's been ongoing since 2009—a case that, by a lay estimate, has eaten up hundreds if not thousands of hours on both sides. When asked if he agreed, Murray would only say that, "an enormous effort has been expended, not just by the plaintiffs, but by our law firm; just an enormous, enormous effort over many, many years, but it's been a very important undertaking and we don't regret a single minute of what we spent on this very worthy First Amendment project, because liberty is at stake in a case like this."
Upon hearing that, Leue added that, "I think, from the FSC standpoint, the industry and FSC in particular owes a tremendous debt of gratitude to Mike's firm, not only because of the incredible work that has been achieved, and the incredible number of hours that have been put in, but also for his and his firm's willingness to accommodate our budgetary constraints in being able to support this litigation and pay for it. I've always been more than grateful for that, and for giving us the flexibility to service those fees as we are able to."
But it was Murray himself who wanted to express both his appreciation of Free Speech's fortitude in continuing with the litigation, and his thoughts as to the deeper meaning of what has been accomplished.
"I must say that not only the Free Speech Coalition but the other plaintiffs made enormously important contributions to this cause, and it has been an absolute privilege to represent the Free Speech Coalition particularly as well as the other plaintiffs in this endeavor, and the support that we've had from the industry has been terrific, and the importance of the issues cannot be overstated," he began. "I mean, these issues go to the very heart of the First Amendment, and there is no reason why these burdensome, onerous statutory regulations and provisions should be imposed upon the good citizens who are members of the Free Speech Coalition and who are absolutely, totally and always opposed to child pornography, who condemn it [and] would do anything to facilitate the detection of it. There has never been any question that the adult industry and the other plaintiffs that we've represented, they've always been totally condemning of child pornography. And this case is not about anything other than securing the First Amendment rights of adults to express themselves in sexually oriented material and to communicate erotic messages to other adults who choose that form of entertainment.
"The government, by imposing these statutory requirements, which date all the way back to the Meese Commission in the era of Ronald Reagan, when the Meese Commission promulgated its report and proposed this statutory scheme, at a time when the federal government was waging war on the adult industry and was actually attempting to eradicate it," he added, "these laws were designed to burden an industry that had always abhorred child pornography and had always made good faith efforts to comply with their long-standing beliefs that IDs would be checked and performers would have to be adults in order to appear in the erotic films and videos that were being produced. And so the First Amendment rights that were at stake in this case, and remain at stake in this case, are of grave importance, and they actually go beyond sexually explicit material, because it's always been the case that the adult industry has been at the forefront of litigating these cases and securing First Amendment rights not just for the adult industry but for the American people and all the citizens of the United States."
So now, the adult industry will just have to hold its collective breath (figuratively) until shortly before Independence Day to see if the government is willing to agree to join Murray and his clients in coming up with a sane and sensible synopsis of the judge's May 22 ruling—or, in the alternative, until July 9, when each side will submit its own proposed wording.
