PHILADELPHIA, Pa.—As AVN reported on July 11, after failing to come to a consensus between them, both J. Michael Murray, attorney for Free Speech Coalition and nearly a dozen other plaintiffs in the long-running 2257 case, and attorneys for the U.S. Department of Justice each submitted its own proposed "Final Judgment" in the case to U.S. District Judge Michael M. Baylson, as he had previously requested. But what happened after those submissions were filed has involved a little bit of a mystery.
Normally, all official activity in a federal lawsuit is recorded in summary form in a legal document known as a "docket," and those with access to the website Public Access to Court Electronic Records, better known as PACER, can read that docket to see what the most recent filings, rulings, etc. in that case have been, and can often download .pdfs of the documents filed with the court.
However, in looking at documents filed recently by both sides, there is reference to a letter from Judge Baylson to attorneys for both sides dated July 13, two days after the last "Final Judgment" proposal was filed—but for some reason, no mention of that letter appears in the docket, much less its text. But from indications in other documents, that letter was accompanied by the text of the judge's proposed (or draft) Final Judgment in the case.
Apparently in response to that letter, both sides submitted further arguments related to what that Final Judgment should say, with Murray's having been filed on Monday, July 30, and the government's the following day. These in turn led Judge Baylson to schedule a telephone conference for Wednesday, August 1, and he generated another letter to counsel regarding that conference earlier in the day, which letter does appear in the docket.
Of particular concern to Murray was Judge Baylson's statement in the July 13 letter that, "Although I believe that the order must include a final judgment in favor of the prevailing party on each issue, I tentatively believe that the fact that the organizational Plaintiffs were dismissed for lack of standing and the Plaintiffs are only receiving relief on their 'as-applied' claims, requires me to observe the Third Circuit’s decision in Belitskus v. Pizzingrilli, and may not allow a complete injunction against the Defendant broader than the named individual Plaintiffs." [Citations removed here and below]
In other words, Judge Baylson, having found large portions of the 2257 and 2257A statutes (henceforth "2257") unconstitutional "as applied" (though not "facially") under the "strict scrutiny" standard the Third Circuit ordered him to apply, told the attorneys that he felt that that ruling must apply only to the ten remaining individual plaintiffs (which includes Sinclair Institute and nine persons) and not to institutional plaintiffs Free Speech Coalition nor the American Society of Media Photographers. It would also not apply to anyone else in the United States who wasn't a plaintiff and who, under 2257, would be required to keep performer ID records in the manner prescribed by 2257.
Murray, however, argued in his submission that when it comes to strict scrutiny being applied to facial and as-applied challenges, there's little if any difference between the two, and he referred to an article by Richard H. Fallon, Jr. which was published in the Harvard Law Review. And according to Murray, even the U.S. Supreme Court "endorsed Fallon's analysis" in the Citizens United campaign contribution case, and that ruling even quoted Fallon as having written, "[O]nce a case is brought, no general categorical line bars a court from making broader pronouncements of invalidity in properly 'as-applied' cases."
Murray urged the judge to adopt that reasoning.
"This Court set forth 'the strict scrutiny standard': the Government must show that the statutes serve a compelling interest, are narrowly tailored to achieve that interest, and are the least restrictive means of advancing that interest," Murray argues. "Those are not fact-specific inquiries limited to the plaintiffs before the Court. Rather they are demands on the Government, which bears the burden of coming forward with evidence to meet the high hurdle of demonstrating that a content-based regulation of speech—which is presumptively invalid—is constitutional. That is what is demanded whether the challenge to that regulation is considered 'as-applied,' or 'on its face.' And when the Government has failed to meet its burden, the content-based regulation of speech is struck down. Period. ... In case after case, when the [Supreme] Court determined a content-based regulation of speech could not survive strict scrutiny, it struck it down in its entirety; it did not limit relief to the individual plaintiffs who challenged it."
Murray cited several Supreme Court cases to back that up, including U.S. v. Playboy Entertainment, and one of the cases which inspired the Third Circuit to require that 2257 meet strict scrutiny, Reed v. Town of Gilbert. He also distinguished those cases from the Belitskus case, also in the Third Circuit, that the government has relied on, involving the payment of mandatory election filing fees, as "fact-specific" to that case and inapplicable here. He suggested that a more applicable Third Circuit case would be ACLU v. Mukasey, which struck down the Child Online Protection Act (COPA)—a decision the Supreme Court apparently had no problem with, since it declined to accept cert from the government.
Murray also indicated that he had a problem with Judge Baylson's proposal, also apparently in the July 13 letter, that the plaintiffs amend the complaint to indicated that "Plaintiffs are suing on behalf of themselves and 'all others similarly situated,'" essentially turning the case into a class action, or alternatively that the DOJ attorneys stipulate that "the Government does not intend to take action against individual producers of sexually explicit expression on the issues in this case"—in other words, abandon attempts to enforce 2257 on adult producers at large, even if they weren't plaintiffs here. Murray rejected those proposals, first because the government's primary attorney, though not having yet discussed the stipulation with her superiors, believed they would not be amenable to it, and also because it would likely cause the case to drag on possibly for several more months if not years.
Finally, in terms of Judge Baylson striking down the 2257 regulations governing the wording of the required labels on explicit material, Murray noted that he had been unable to come to an agreement with the government on how that wording should read, and suggested that that discussion (and ruling) be put off "until after any appeals are concluded."
By contrast, the government's response to Judge Baylson's July 13 draft Final Judgment argues, through various additions to the text, that the draft should make it very, very clear that the portions of 2257 which the court struck down as unconstitutional apply only to the individual plaintiffs—even claiming that the judge's striking of the criminal penalties for violation of the ID and age verification rules apply only to those individual plaintiffs and no other producer—and even to limit the relief afforded to secondary producers only to those who meet the definition of that term in the regulations that were written to implement 2257.
As noted earlier, the government's reasoning relies almost exclusively on the Belitskus case—but interestingly, in his August 1 letter to the attorneys in preparation for their conference call, Judge Baylson doesn't mention that case at all, but rather asks if a more recent (and as yet undecided) case, Knick v. Twp. of Scott, might be more relevant to "the difference between facial/overbreadth analysis, and as-applied analysis," since filings have mentioned a prior ruling in the 2257 case? That case relates to whether a government can require a property owner to give the public access to her property because an old burial ground is located on it, but Judge Baylson's concern seems to be that the Third Circuit, in dismissing some of Knick's claims because "although the ordinance was constitutionally suspect, she lacks Article III standing because she failed to demonstrate an injury-in-fact and redressability"—which is probably why another question in the judge's August 1 letter is, "Can the Government identify any person involved in the adult pornography industry who would still be subject to prosecution given this Court's rulings?"
But perhaps the most important question Judge Baylson asks in the letter is, "Can I issue an injunction to enjoin the Government from enforcing the Statutes not only as to the Plaintiffs, but to others who are 'similarly situated' on a theory of collateral estoppel, sometimes referred to as 'one way estoppel'? Since the Court must rule in favor of the named Plaintiffs, this would include an injunction against the Government enforcing the statutes (and regulations) against them. Is there any additional provision that any Supreme Court case has approved in any analogous situation that would preclude further litigation against other persons 'similarly situated'"?
In other words, even though his proposed ruling would apply only to the individually named plaintiffs here, considering the fact that the government is unlikely to be unable to identify any other adult industry member it could prosecute under 2257 who could not take advantage of the plaintiffs' win in this case, what's to stop him from simply saying, "Okay; my decision applies only to the individual plaintiffs in this case, but since the reason they won is that the law is unconstitutional as applied to them, why not save the government the time and expense of going after other producers who aren't plaintiffs, since if it did, those charged under 2257 could defend themselves simply by citing this case?" Of course, though it's perfectly logical for him to issue that injunction, he's looking for a prior Supreme Court decision that would allow him (one might say "give him legal cover") to do that.
AVN has reached out to Murray for an answer to that and several other questions, but at press time, he was unavailable. This article will be updated when he responds.