PHILADELPHIA—The U.S. Department of Justice may have admitted that it's stupid to force adult producers to keep age verification records on performers over 30 years old, but that's not nearly enough of a concession, charge J. Michael Murray and Lorraine R. Baumgardner, the team representing Free Speech Coalition and the 11 other remaining plaintiffs in the lawsuit against the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A.
In a reply filed yesterday to the government's brief in support of allowing the 2257 laws to continue to exist, the plaintiffs' attorneys argue that, under the "strict scrutiny" doctrine which the Third Circuit Court of Appeals has instructed District Court Judge Michael M. Baylson to apply, 2257 just can't survive.
After making clear that the DOJ attorneys were unable to give an affirmative answer to the fundamental question Judge Baylson had asked at the September 28, 2017 hearing, "[I]s it correct that on the record in this case so far, there’s no evidence that any primary producer has ever employed a minor in a sexually explicit video or other production?", Murray and Baumgardner further attacked the "evidence" the government did submit in its brief, beginning with the sworn declarations from three officials that, it turns out, bore no relevance to the case.
"The ten pages of written declarations do not cure the deficiencies in the record recognized by this Court," the plaintiffs' brief states. "They offer no evidence that producers of adult materials have used minors in the production of their material, nor do they provide any evidence demonstrating that the statutes are the least restrictive means of preventing the appearance of minors in sexually explicit material. Instead, the Government has used the submission of these spare declarations as a platform to file an additional 54 pages of argument in the form of a supplemental brief and proposed findings of fact. But argument—new or re-calibrated—cannot make up for a lack of evidence." [Citations removed here and below]
The government's problem remains that it cannot survive a "strict scrutiny" review of the law, which the plaintiffs' brief notes must describe "what evidence the Government must produce to satisfy its burden of demonstrating that a content-based restriction of speech serves a compelling governmental interest: the evidence must demonstrate that 'an "actual problem" in need of solving' exists, and it must demonstrate that there is 'a direct causal link' between that problem and the expression sought to be regulated."
"Plaintiffs’ evidence, in fact, affirmatively demonstrated that producers of adult materials, long before these statutes were enforced, followed a uniform practice of verifying the ages of their performers by examining photo identification to assure they were adults," the plaintiffs' brief states. "The record, as supplemented, contains not a jot of evidence that calls that testimony into question."
Not only that, but an April 2016 report to Congress prepared by the Justice Department regarding child exploitation, "which sets forth key findings of its threat assessment regarding criminal offenders who produce child pornography, does not mention, much less discuss, the use of minors—negligently, recklessly, or intentionally—by producers of sexually explicit adult films or photographs."
The brief then takes up the question of whether 2257 and 2257A are the "least restrictive means among available, effective alternatives" for the government to assure that minors don't appear in adult industry productions—and sure enough, the government fails again.
"[T]he Government must come forward with evidence demonstrating that the severe penalties exacted by the laws prohibiting the production of child pornography are ineffective in assuring that adult film producers do not use minors in their productions," the brief states. "This record does not bear out that contention, however. Rather, it shows that the laws in the federal criminal code and in the criminal codes of all 50 states imposing substantial prison terms, fines, and other penalties for producing, possessing, and distributing child pornography stand as extremely effective deterrents against the use of minors in sexually explicit productions and exert a powerful influence in prompting producers of sexually explicit adult content to verify that the performers depicted in their expression are all adults. Jeffery Douglas, the Chair of the Free Speech Coalition, testified that given the 15-year mandatory minimum sentence for using a minor in sexually explicit productions, it would be 'utterly mindless' to risk using an underage performer."
Translation: Child porn laws work as a deterrent! Not only that, but according to John Shehan, VP of the National Center for Missing and Exploited Children (NCMEC), there's been "a tremendous increase in CyberTipline reports" of child porn, and in no case has an adult industry producer been found to have used a minor in a production.
The brief next tackles the question of whether the portion of 2257A which allows producers of softcore erotic content to simply file a letter with the Attorney General certifying that it keeps employment and tax records of all performers in the regular course of its business so as to avoid using minors in such content would work just as well for sexually explicit content—and guess what? There's no reason why it couldn't!
"The Government argues that the certification procedure is ineffective as it pertains to depictions of actual sexual conduct because producers of adult materials are not part of a 'monolithic' industry," the brief states. "But the certification procedure of 18 U.S.C. §2257(h), which Congress found sufficient to verify the ages of the performers in the production of images of simulated sexual conduct and lascivious display of the genitals, is not limited to a 'monolithic' industry. In fact, the Government has acknowledged that some of the Plaintiffs, whose work depicts simulated sexual conduct, are already eligible for this certification option as to their simulated sexual images, notwithstanding the fact they do not fit the Government’s notion of a 'monolithic' industry." [Emphasis in original]
The brief goes on to note that in order for the adult industry to release its products to the public, it has to have valid model releases from the performers "which requires them to verify they are adults who are competent to enter into such releases in order to allow the publication and distribution of their work." Failing that, the movie, book, magazine or other content in question would be uncopyrightable.
There is also some discussion in the brief about whether the court could limit 2257 requirements only to those who do not produce "images intended for sale or trade"—a position with which the government appeared to agree in its proposed definition of "producer." However, whether the law would allow the court to impose such a construction on the law is unclear—but since the government supports such a construction, it could hardly object to applying 2257's "Attorney General letter" to the mainstream adult production community.
Also in the brief: An argument against requiring "secondary producers" such as distribution companies and online retailers to keep age-verification records, since those entities never come in contact with the performers, and an argument in favor of simply requiring adult companies to keep such records on penalty of administrative fines rather than the two-, five- and ten-year jail terms that 2257 mandates for non-compliance with its regulations.
Near the end of the brief, the plaintiffs' attorneys tackle the question of whether 2257 compliance could legally be limited to performers under the age of 30, as the government had conceded—"thrown in the towel on this point"—in its brief. But according to Murray/Baumgardner's analysis of the law, such an option has already been precluded by the U.S. Supreme Court in United States v. Playboy, which counseled that such an alternative would require an act of Congress: "Given the existence of a less restrictive means, if the Legislature wished to improve its statute, perhaps in the process giving careful consideration to other alternatives, it then could do so."
"The Government tries to sidestep Playboy by arguing that what it proposes is simply 'a partial invalidation' of the statutes," the attorneys state. "But what it proposes is not a partial invalidation; it is a rewrite. Its proposal would add the phrase, under the age of thirty years old, to modify the statutory term, every performer, in 18 U.S.C. §§2257 (a), (b), (e); 2257A (a), (b), (e)." And according to the Supremes, that's a no-no, since the government tried to do the same in the U.S. v. Stevens dog-fight video case, adding "extreme" to the phrase "animal cruelty," and that method was struck down.
Not only that, but "The Third Circuit, in fact, rejected a different rewrite of 18 U.S.C. §§2257, 2257A in earlier stages of this litigation for the same reason," the brief notes. "The Government proposed that the statutes be construed to apply only to depictions offered 'for sale or trade.' The court found, just as the Supreme Court did in Stevens, that 'limiting constructions are not available where they require "rewriting, not just reinterpretation".'" The plaintiffs go on to note several other instances where complete rather than partial invalidation of laws was required.
Yet another reason to ditch 2257 would be this one, but all in all, Murray and Baumgardner make excellent arguments for why 2257 and 2257A cannot survive strict scrutiny. Now, it's up to Judge Baylson to find some way to justify the laws, or to strike them down in their entirety. Just when one of those alternatives will happen is anybody's guess.
