WASHINGTON, D.C.—The American Center for Law and Justice (ACLJ), the legal group established by evangelist Pat Robertson as an "answer" to the American Civil Liberties Union, has filed an amicus brief on behalf of itself and 23 Republican congressional representatives opposing the Free Speech Coalition's lawsuit to declare the federal record-keeping and labeling law unconstitutional. Included among the amici are such outspoken critics of the adult industry as Mike Pence and Joe Pitts, both of whom appeared at 2005's "Victims of Pornography Summit" held in the Congress' Rayburn House Office Building, as well as such die-hard conservatives as Dan Burton, Randy Forbes, Phil Gingrey, Louie Gohmert, Steve King and Todd Tiahrt.
The ACLJ's 18-page brief—authored by ACLJ chief counsel Jay Alan Sekulow and Laura B. Hernandez, whose office address is Robertson's Regent University, as well as Lancaster, Pa.-based attorney James B. Clymer—takes as its main theme the claim that "the age verification requirements of 18 U.S.C. §§2257 and 2257A pose no threat to Plaintiffs' First Amendment rights." The brief draws heavily from two earlier 2257 decisions, American Library Assn. v. Reno, the original 2257 suit decided by the District of Columbia Circuit in 1994, and the more recent en banc Sixth Circuit ruling in Connection Distributing v. Holder, which overturned a Sixth Circuit panel's finding that 2257 was constitutionally overbroad. (All of that panel's judges filed strong dissents to the en banc panel's ruling.)
The ACLJ brief begins by claiming that 2257 and 2257A are "pointedly tailored to eradicate the exploitation of minors in the pornography industry," although in fact nothing in either law would prevent a minor with an authentic-looking photo ID from performing in adult movies.
"The Supreme Court has stressed that the 'narrowly tailored' requirement does not require the state to choose the least-restrictive means or even the most appropriate means of achieving its objective," the brief claims. "Rather, the state must merely avoid choosing means that 'burden substantially more speech than necessary to further the government’s legitimate interests.'" [Emphasis in original; citations removed here and below]
Indeed, the ACLJ claims that 2257 and 2257A don't burden any speech at all.
"The age verification and record-keeping provisions of sections 2257 and 2257A merely require plaintiffs to verify that they are not using minors to produce sexually explicit materials," Sekulow and his associates write. "Plaintiffs concede that the use of minors in sexually explicit materials constitutes child pornography. Thus, the only 'speech' that sections 2257 and 2257A impact is child pornography."
The amici claim is at best disingenuous, if it doesn't betray outright ignorance of adult industry practices. The records required to be kept by the adult industry, as well as indexed and made ready for inspection, are all of adult performers, and if there have been any underage performers found in the records of the 26 companies the FBI has inspected over the past three years, the U.S. Department of Justice (DOJ) has yet to identify even one.
Yet despite the fact that no minors have been found through 2257 record inspections, and despite the fact that adult producers are not required by 2257 or 2257A to be expert enough to distinguish a real adult photo ID from a good forgery, the ACLJ passes off the multimillion-dollar expense of keeping and indexing the records as "no more constitutionally significant than numerous other age verification and record-keeping requirements imposed under federal law ... governing employer/employee relations."
Notably, the Electronic Frontier Foundation, in its amicus brief in support of FSC's lawsuit, calculates that using a third-party record-keeper to maintain one single 2257 record for the seven years required under the law would cost $1186.80—and there are literally hundreds of thousands if not millions of such records required to be kept.
The ACLJ compares 2257's record-keeping requirements as not significantly different than those imposed on any other business which keeps records to comply to employment, immigration or tax laws, but leaving aside the question of whether adult performers are employees or independent contractors, the difference between 2257 records and those kept by employers in other businesses—even businesses subject to the Fair Labor Standards Act of 1938, which ACLJ references—is that unlike mainstream employers, the failure of an adult producer to abide by 2257 regulations exposes that person to five years in federal prison and tens of thousands of dollars in fines for each violation.
The ACLJ also claims that the 2257 lawsuit plaintiffs are foreclosed from relief under the First and Fourth Amendments because the U.S. Supreme Court's decision in California Bankers Ass'n. v. Schultz upheld a federal law requiring identificatiion and record-keeping requirements "where such information was necessary to avert criminal activity." Trouble is, making an adult movie isn't a "criminal activity"; it's a form of constitutionally protected speech creation—and the ACLJ's claim that 2257 records, like those required to be kept by bankers, have "a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings" is just nonsense: The 2257 and 2257A laws don't even require the kept records to be authentic! And that's beside the fact that all adult producers realize that if they were to use an underage performer in one of their productions, they could be prosecuted under the child pornography laws, and that all copies of the production would have to be recalled and destroyed at great expense to the producer.
Simply put, the ACLJ brief is a crock, and U.S. District Judge Michael Baylson, who is presiding over FSC's lawsuit, should simply ignore it.
