Motion for Preliminary Injunction Accompanies FSC 2257 Filing

PHILADELPHIA—While Free Speech Coalition has now launched its most aggressive fight yet to remove the federal recordkeeping and labeling law, 18 U.S.C. §§2257 and 2257A, from the U.S. Criminal Code, the case is expected to take several years to fully resolve, and in the interim, adult businesses (and even some Hollywood producers) will continue to be at the mercy of its onerous requirements—unless, as is hoped, the U.S. District Court for the Eastern District of Pennsylvania grants FSC's Motion for Preliminary Injunction.

The motion, which was filed by FSC's counsel, First Amendment attorneys J. Michael Murray and Lorraine Baumgardner, along with FSC's complaint on Wednesday, seeks to prevent the U.S. Department of Justice (DOJ) from conducting inspections of producers of actual and simulated sexually explicit content. It also seeks to prevent the DOJ from moving forward with prosecutions of any producers it has already inspected, on the basis that such inspections and prosecution violate those individuals' and companies' First, Fourth and Fifth Amendment rights.

The motion begins with an exhaustive history of 2257 litigation which stretches back over 20 years, beginning with a recommendation in the Final Report of the Attorney General's Commission on Pornography, commonly known as the Meese Commission. That report concluded that "the bulk of child pornography traffic is non-commercial," that its production is "clandestine in character," and that "traffic in child pornography went underground after 1978"—all of which would seem to militate against the need for shifting the burden to the legal adult industry to prove it wasn't using kids in its productions.

Nonetheless, Congress enacted the first version of 2257 in 1988—and it's been in litigation ever since.

The motion quotes extensively from the Commission's executive director, Alan Sears, who now heads the ultra-conservative legal group Alliance Defense Fund, who claimed that 2257 would only target hardcore material where there was "some question about the age of a youthful-looking performer" and that a producer could "overcome the consequences of his non-compliance—that being, the presumption that persons depicted were minors—by producing evidence that the performers were, in fact, adults." Moreover, "no information or evidence obtained from records required to be created or maintained" under 2257 regulations shall "be used directly or indirectly as evidence against any person with respect to any violation of law."

Of course, as 2257 legislation has progressed, all of those initial requirements have radically increased and the prohibition against using the records for prosecutions has been abandoned. In its place is now a massive recordkeeping scheme that specifies who shall keep records of all performers of actual or simulated hardcore and sadomasochistic acts (not to mention lascivious exhibition of the genitals), how and where such records shall be kept and indexed, as well as criminal penalties for the slightest omissions or mistakes—and FSC's motion, on behalf of itself, its members and 14 other plaintiffs, sets out those requirements and penalties in 18 pages of exquisite detail.

The motion then proceeds to explain why the injunction should be granted, noting that the "movant" (plaintiff) "has shown a reasonable probability of success on the merits"; "will be irreparably harmed by denial of relief"; that "granting preliminary relief will not result in even greater harm to the nonmoving party"; and that "granting the preliminary relief will be in the public interest."

Certainly, it will be hard for the Justice Department, which for more than a decade did not conduct a single 2257 investigation, to argue that the public will suffer "even greater harm" if 2257 inspections and prosecutions are suspended for the pendency of the lawsuit.

The preliminary injunction motion essentially restates, though in much greater detail, the allegations made in FSC's Complaint; namely that 2257 (as well as 2257A) is a content-based regulation that must satisfy strict scrutiny in order to pass constitutional muster, which means that the law must be "narrowly tailored to promote a compelling governmental interest and be the least restrictive means of accomplishing that interest."

However, the motion notes that even if the court finds the regulation to be content-neutral, it must still satisfy intermediate scrutiny, meaning that it must "advance[] an important governmental interest, [be] narrowly tailored to serve that interest, and... not burden substantially more speech than is necessary and leave[] open ample alternative avenues of communication"—another test which 2257 clearly fails.

Among the points that plaintiffs stress in the motion are that 2257 does nothing to prevent underage performers from appearing in hardcore movies and on websites, but rather simply adds additional penalties if they are found to have done so—and of course, it's been nearly a decade since an underage performer has managed to defraud her way into the adult industry—and in the roughly 37 years of the adult industry's existence, just five underage performers have been identified, the most famous of which was Traci Lords.

"If the purpose of the statute is to combat child pornography, the government must demonstrate that applying recordkeeping and labeling requirements to that which is not child pornography furthers that goal," the motion says, with the plaintiffs knowing full well that the evidence shows that no minors have appeared in FSC's members' productions in several years—and that keeping identification records on performers would not have prevented them from appearing in any case.

After citing multiple sources showing the government's success rate over the past several years in prosecuting child pornography, the motion concludes that, "There is simply no support for the government's claim that the record keeping statutes are needed in prosecuting child pornography... For if the problem sought to be addressed is assuring that the adult film industry uses only adults in its sexually explicit productions... by requiring it to verify the ages of young-looking performers, Congres itself demonstrated that the problem can be addressed by a more narrowly tailored remedy"; namely, the exemption letters that mainstream producers are allowed to file under 2257A with the Attorney General, certifying that they keep records of their employees' ages for tax and unemployment insurance purposes.

Besides failing to weed out the imaginary underage performers, 2257 also fails, the motion argues, from being overinclusive, in that it targets "a vast amount of protected private expression between adults: an army wife e-mailing a suggestive photo of herself to her husband stationed far from home, two adults 'sexting' messages to one another on their cell phones, and adults privately exchanging sexually candid photos with one another on a social networking website, among others." The motion sets forth examples of how several of the plaintiffs have had their expressive rights curtailed by 2257's requirements.

Finally, in the first section, the motion argues that the 2257 law and regulations are overbroad, targeting "a substantial amount of protected expression," a result which the Supreme Court has found to facially invalidate similar regulatory schemes.

In its next section, the motion explains why 2257 and 2257A are content-based restrictions on expression and should therefore be subject to strict scrutiny. Besides the lack of narrow tailoring, the motion notes that the regulations unconstitutionally suppress anonymous speech, and impose a prior restraint on protected expression (since no hardcore work can be sold without the required ID records kept and label affixed). Moreover, failure to maintain such records and affix such labels makes a producer criminally liable, and the inspection procedure for the records opens a producer to being forced to become a witness against him/herself in violation of the Fifth Amendment.

Finally, the motion argues that the entire record inspection scheme is an unconstitutional circumvention of the Fourth Amendment's prohibition against unreasonable searches and seizures, since 2257 record inspections are conducted without warrants or probable cause.

Like the complaint, however, the Motion for Preliminary Injunction will likely not be ruled upon until early next year, since the DOJ must be given an opportunity to respond to the plaintiffs' filings, and oral argument must be scheduled. But perhaps it will serve as a warning to the Justice Department that further violations of adult producers' constitutional rights may subject it to sanctions that could include millions of dollars in damages to producers whose businesses are harmed by such inspections and potential prosecutions.