Post-Trial Reply Briefs Filed By Both Sides in 2257 Case, Part 1

PHILADELPHIA, PA—Unlike the first post-trial briefing in the case of Free Speech Coalition, et al. v. Holder, which seeks to overturn the federal recordkeeping and labeling law(s), 18 U.S.C. §§2257 and 2257A, Judge Michael M. Baylson did not request that the parties file their briefs simultaneously, so with the plaintiffs having filed their reply on Friday, the government took advantage of the extra weekend and filed its reply this morning.

What both sides did observe, though, is the judge's order that the plaintiffs' brief deal exclusively with the government's Fourth Amendment arguments, and that the government's deal with plaintiffs' First Amendment claims—and right off the bat, the government gets it wrong.

"Plaintiffs’ post-trial brief makes clear that the heart of their concern with §§2257 and 2257A ('2257') is not that checking photo IDs of individuals who appear in their work prevents them from creating sexually explicit depictions of adults," the government brief begins—with a "straw man" argument, since that was not most plaintiffs' claim, and since testimony revealed that all adult industry producers check models' IDs as a matter of course. "Instead, plaintiffs simply regard the statutes as flawed as a matter of principle, by (in their view) forcing them to prove that their work is not child pornography. That view reflects a fundamental misunderstanding of this prophylactic regulatory law."

Actually, the "fundamental misunderstanding" is all the government's, since what it terms a "prophylactic regulatory law"—in other words, "Hey, fella, we're just doin' our job here; nothin' more to see, so move along"—is in fact a complete reversal of the most basic concept of American jurisprudence: The defendant (in this case, any adult content producer) doesn't need to prove him/herself innocent; the government needs to prove, beyond a reasonable doubt (since this is a criminal statute), that the defendant has committed the crime with which he/she has been charged. And in the case of minors in porn, the government has never found that an adult industry producer has knowingly put one in any of its productions—and the government only found out about the (almost literal) handful of minors sneaking into the industry, not by inspecting 2257 records, which it has done officially 29 times, but because the industry itself told them!

"The images at issue, produced by plaintiffs and unknown others, are made by filming real people engaging in sexual activity," the introduction to the reply brief, which claims the same seven authors as the government's first post-trial brief, continues. "These images are not prohibited as long as the individuals being filmed are adults. However, such filming raises a legitimate safety concern with respect to the ages of individuals being filmed because, if any of these individuals were under 18, filming them engaged in sexual activity would be creating child pornography."

Well, talk about shooting your own argument in the foot! Of course any "individual ... under 18" being filmed "engag[ing] in sexual activity would be creating child pornography"! That's exactly why adult producers—you remember; the ones who actually keep 2257 records, as opposed to actual child pornographers, who don't—check the IDs of every performer who works for them, because child pornography is a much heavier bust than a 2257 violation, and nobody wants to go to prison for 10 years or more for filming a movie! Hence, requiring adult producers to not only check IDs (which might be fraudulent but look real) and record every name the performer has ever used, but to cross-reference them with every movie they've ever made for that same producer is not only overkill but useless, since as long as the producer keeps the IDs, does the proper cross-referencing and fulfills the other requirements, he/she can't be convicted of a 2257 violation even if the real-looking ID presented to the producer is false, and the performer is really underage!

"Plaintiffs identify no reason for exempting them from these prophylactic measures, none of which prohibit their expression," the government later states, ignoring the fact that fear of imprisonment for misfiling a 2257 document can be good for up to five years in the slammer, and therefore might just have a chilling effect on a potential producer of sexually explicit content.

"Rather, all plaintiffs in this case fall squarely within the legitimate scope of 2257 because they use youthful looking individuals in their work, and have no intention to stop doing so in the future. Nor can plaintiffs’ flawed evidence establish that, relative to the vast universe of commercial, publicly available pornography, any invalid applications are substantial."

"Flawed evidence"? Would that be the "flawed evidence" provided by defendants' own expert witness, Dr. Gail Dines, who said that not more than one-third of all the porn she's seen contains any performer who could be confused for a minor? Our math skills may have gone rusty over the years, but that seems to indicate that fully two-thirds of all sexually explicit content from adult producers (who have been the government's only targets in its 2257 inspections) don't contain any individual who could be mistaken for being underage, yet all are required to keep 2257 records anyway!

The government next argues that since the Third Circuit, in its reversal of Judge Baylson's dismissal of this case back in 2010, remanded only the "as-applied" (rather than "facial") First Amendment challenges to 2257, and that plaintiffs' argument regarding 2257's failure to be "narrowly tailored" in promoting the government's purpose in passing the law should only be applied to the plaintiffs in the current case. Of course, aside from the sex educators and fine-art photographers, the main plaintiff in the case is the Free Speech Coalition (FSC), which represents hundreds of adult content producers, so even if Judge Baylson decides that the law is not narrowly tailored, besides the Sinclair Institute, Channel 1 Releasing, webmaster Tom Hymes and independent producers Nina Hartley and Dave Cummings, the ruling would still apply to every member of FSC—and considering how such a ruling would adversely affect producers who are not also FSC members, a successful appeal of Judge Baylson's ruling could easily reinstate a 2257 facial challenge, so all content producers would be covered.

And while the government brief goes on to claim that plaintiffs' arguments regarding narrow tailoring are a "repackaging [of] their overbreadth challenge," even if Judge Baylson were to rule that 2257 is not narrowly tailored as to plaintiffs, that's still a lot of producers who'd be relieved of their recordkeeping and labeling responsibilities—and a clear invitation to producers who are not FSC members to challenge the same statute in another lawsuit—and at that point, they'd have precedent to back them up!

Interestingly, when the government's brief gets into the nitty-gritty of how 2257 is actually sufficiently narrowly tailored, it does so by ignoring the testimony of its own witness, Dr. Gail Dines. Rather, it focuses on Dr. Francis Biro, a pediatrician with little experience with sexually explicit content, who testified that no one under 12, and few 13- and 14-year-olds would be mistaken by anyone for adults, and that virtually no one over 25 would be mistaken for a child. The government uses that testimony to argue that at least for 14- to 25-year-olds, adult producers (and FBI inspectors) could not be sure who's a minor and who isn't—disregarding the facts that A) all of the minors who've appeared in adult industry-produced explicit content since the 2257 law was passed used fraudulent-but-real-looking IDs to get into the industry in the first place, and B) that adult producers will always do their best to make sure their performers are adults because they don't want to run afoul of child porn laws.

Interestingly, defendant quotes from the Sixth Circuit's en banc decision in Connection Distribution v. Holder, which said, "The Sixth Circuit also recognized the critical point that 2257 does not ban any form of speech but simply requires ages to be verified and records to be kept." What the government attorneys may not be aware of, however, is a recent Third Circuit decision in U.S. v. Moreno, which held that simply because the United States has issued a person a passport, that passport cannot be counted upon as proof that its holder is in fact an American citizen, since such passport might have been fraudulently obtained—and if a passport can no longer be used to identify a person as a U.S. citizen, how could one be considered as reliably identifying a person's age for 2257 "verification" purposes?

But really, forcing adult producers to look at performers' IDs—which they would do in any case to avoid child porn charges—is, in the government's mind, being helpful to producers, who apparently can't be trusted to look at, for instance, Nina Hartley or Dave Cummings and not be sure whether they're children. To support that contention, it refers to the testimony of FBI agent Stephen Lawrence regarding whether 2257 should contain some sort of age cut-off, above which no ID would be required—but again, that ignores common industry practice of looking at IDs to avoid child porn charges.

But that's not good enough for the defendant.

"The only comfort that some of these plaintiffs attempt to provide is their assurance that if they did ever have a question, they would check IDs of their own accord, even though they were not required to do so or to keep records of having done so," the brief states. "But this alternative would leave the question of whether they had actually checked an ID unverifiable, and would allow the resulting image (which to any observer could appear to be child pornography) to be disseminated with no way of tracing any associated age verification records."

First of all, either a sexually explicit work is child pornography or it isn't, and whether or not the government can "verify" through 2257 records that a producer looked at a performer's ID is irrelevant, because as previously noted, 2257's ID requirement does not in fact assure that a performer is an adult; it merely shows that a producer looked at an ID... which might be completely fraudulent! (For more than a decade, Free Speech Coalition has been trying to get a law passed in California that makes it a crime for a minor to attempt to defraud an adult producer by presenting fraudulent age verification. So far, it has been unsuccessful.)

And talk about chutzpah! After spending more than a page on the straw-man argument that a system where only performers below a certain age need to present a photo ID to a producer wouldn't work, the government ponders why none of the plaintiffs raised that argument themselves.

"Despite their overinclusiveness argument, no plaintiff has asked the Court, either in the Amended Complaint or in their post-trial brief, to invalidate 2257 only as applied to the portion of their work that includes individuals under a certain age," the brief states. "Nor is there any evidence in the record suggesting that any burdens of 2257 (to the extent they are burdensome at all) would be significantly decreased if 2257 applied only to some, but not all, of plaintiffs’ sexually explicit depictions."

That argument, of course, is meant to obscure the fact that compliance with 2257 doesn't "verify" anyone's age.

So, as the brief states on page 8, "Plaintiffs offer nothing that could contradict this reasoning," but rather, at this point, the defendant seeks to rebut the burden-shifting argument previously noted... and of course, fails miserably.

"Instead, they seek to resurrect the idea, raised and rejected at previous stages of this case and in earlier cases, that 2257 imposes an impermissible 'presumption' that a producer’s work is child pornography. But again, as the District of Colorado court recognized when FSC raised this same argument in that case, the notion that 2257 imposes such a presumption cannot be squared with the fact that, while child pornography is illegal, 'the statute and regulations do not ban Plaintiffs’ expression,' citing Free Speech Coalition v. Gonzales, FSC's previous lawsuit that was dismissed by agreement of the parties. [Citations omitted here and below]

"Moreover, the cases that discuss a 'presumption' as matter of constitutional concern have to do with presumptions of guilt in criminal trials," the brief continues. "Nothing in 2257 allows for a similar presumption, in a child pornography prosecution, that the individuals depicted are under 18 if the producer has no 2257 records for that depiction."

But of course, child pornography prosecutions aren't what's under discussion here; it's prosecutions under 2257, which law provides for a prison term of from two to ten years if the producer fails to keep records, fails to cross-reference them, fails to label explicit content properly and/or fails to be available for inspection 20 hours per week for upwards of five years—even if it can be verified that no child took any part whatsoever in the content's production! And of course, it's the government that should do the verifying, and not be allowed to shift that burden onto adult producers—which is exactly what the recordkeeping and labeling law does!

The brief's next section attempts to show that 2257 isn't overbroad, and once again, gets the plaintiffs' argument wrong.

"Plaintiffs’ discussion of their overbreadth claim, much like their as-applied claims, is flawed at the outset because plaintiffs simply assume that every application of 2257 to an individual over a certain age is invalid," the brief claims, again misstating plaintiffs' argument. "The universal application of the requirements, regardless of the apparent age of the individual depicted, is necessary to avoid 'injecting "an ineffectual subjectivity" into the proof-of-age requirement,' and to avoid simply 'delegating enforcement of this critical issue to the industry being regulated'."

First of all, to require that 2257 records be kept of performers who are obviously adults is the very definition of "overbreadth," since the only interest the government can officially take in adult productions, aside from possible obscenity charges, is whether they contain children, and it should go without saying that people who are obviously adults aren't children—and according to the defendant's own expert, that's about two-thirds of all the adult content produced, with plaintiff experts like Dr. Daniel Linz putting the figure even higher.

And once again, the defense ignores its own witness when it argues, "Even if there were some 'critical mass' of 'obvious adults,' as compared to youthful looking individuals, that could tip the scale in favor of facial invalidation, plaintiffs have failed to meet their heavy burden to demonstrate it here. Plaintiffs argue that as much as 90% of all commercially produced depictions of sexually explicit conduct depict only performers who are obviously adults. Nothing even close to that figure can be supported by the evidence presented at trial."

We suppose one could argue that Dr. Gail Dines' two-thirds (or roughly 66.7 percent) of content that don't contain young-looking performers is "not[] even close" to the 90 percent figure that's in fact slightly higher than Linz's testimony, but what's the point? The government would likely be trying to convince the court that 2257 is worthwhile if even only one percent of performers looked "youthful."

Why, one might ask.

This is perhaps not the place to argue that 2257 was put in place not mainly to prevent children from appearing in adult productions, but to create such financial and manpower burdens on the adult content production industries that some (possibly many) would simply quit producing that content rather than suffer the cost and risk of keeping 2257 records... but the government's next point provides some evidence that that is in fact the case.

"Plaintiffs similarly fail to meet the burden required to support facial invalidation of the statutes with respect to purely private images," the brief states. "Plaintiffs describe four categories of depictions—husband and wife, sexting, adult dating sites, and artistic educational, and journalistic expression—as supporting their overbreadth claim based on private images. However, their description and evidence related to each category are seriously flawed. As an initial matter, plaintiffs fail to compare any of the categories they identify to the 'plainly legitimate sweep' of the statutes—which covers the universe of publicly available sexually explicit images. That universe is 'extremely vast,' even when considering only commercially-produced images, as plaintiffs' own expert Linz testified. Even if plaintiffs had presented evidence to support the existence of a large amount of invalid applications along the lines they describe, facial invalidation would be unwarranted, given the statutes' vast plainly legitimate sweep. In any event, plaintiffs fail to provide any such evidence."

First of all, if one reads 2257, it's clear that it isn't limited to "the universe of publicly available sexually explicit images." The statute's text clearly states, "Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction." [Some punctuation removed] So the best evidence of the plaintiffs' claim that the statute is overbroad is in the very first section of the statute itself!

Beyond that, the government argues that even though photographers Barbara Alper, David Steinberg and Barbara Nitke all stated that they take hundreds of photographs of sexually explicit activity that won't be published anywhere, their testimony should be disregarded except as to the fact that each said that some of the photographs would be included in commercially-available works, and that somehow, that invalidates their testimony that they also take explicit photos for their own enjoyment, all of which are also subject to the 2257 regulations.

"Other than their own work, plaintiffs rely on hearsay that the Court has already stated it will not consider as evidence of the truth of the existence of purely private sexually explicit depictions," the brief claims. "None of this material specifies the type of conduct depicted in the alluded-to images, thus making it impossible to determine whether any such images would be subject to 2257. This material is entirely irrelevant and unreliable as evidence of the prevalence of purely private depictions of sexually explicit conduct."

It's hard to square that argument with the testimony of Drs. Michelle Drouin and Marc Zimmerman, both of whom conducted studies of young adults' sexting habits—so of course the defense has to claim that those studies were poorly done, even though the court seemed to take judicial notice that the practice of sexting explicit images exists. Even the defense's own expert, statistician Dr. Philip Stark, agreed with plaintiffs' attorney J. Michael Murray, that it was "common sense" to believe that nationally-recognized polling groups had found that "one in five American smartphone owners had sexted."

Finally, the government has the moxie to make this argument: "Moreover, with respect to both truly private depictions and sexts, plaintiffs fail to establish that, to the extent anyone wishes to create sexually explicit depictions for purely private reasons, they are in any way chilled from doing so. Nor is any such chill realistic when, absent public availability, there is little likelihood that these private depictions would ever come to the attention of the Government for purposes of evaluating 2257 compliance."

Talk about chutzpah! The government is claiming that private citizens shooting explicit content aren't chilled by 2257, but the real question is, would they be chilled if they knew that the 2257 laws existed—which they almost universally have never even heard of! Then, apparently making the assumption that those private citizens have heard of 2257, would they again not be chilled since there is "little likelihood" that the government would ever see their explicit content in order to inspect whether that content violates the 2257 requirements?

Once again, that's a foot-shooting argument because it is a tacit admission that 2257 only targets the adult content industry, so private citizens supposedly don't have to worry, even though their failure to keep records, cross-reference them, label their content and be available 20 hours per week for inspection opens them to the same criminal penalties the government is trying to enforce against the adult industry! And if the government were to make the argument that private citizens are subject to 2257, doesn't that make the case that 2257 is indeed overbroad, since it would target millions of private citizens who sext, Skype and/or post on social media like Facebook the sexually explicit images they produce for their own enjoyment, or the enjoyment of their friends?

The government's post-trial reply brief can be found here.

Check back with later this afternoon for AVN's analysis of the plaintiffs' reply brief.