Reversing 2257 Ruling Will Be Uphill Battle

Gregory A. Piccionelli

On July 18, U.S. District Court Judge Michael Baylson issued his ruling in Free Speech Coalition vs. Holder, the lawsuit that pitted Free Speech Coalition and fifteen other plaintiffs against the Justice Department over the constitutionality of the federal recordkeeping and labeling laws (18 U.S.C. §2257, 18 U.S.C. §2257A and 28 CFR 75 et seq.), better known to the adult entertainment industry simply as the 2257 regulations.

In his ruling, supported by a 74-page memorandum, Baylson held that the 2257 regulations are constitutional, except in regard to inspections of producers’ private residences without prior notice. In the memorandum, Baylson wrote:

The remaining best chance for invalidating the 2257 regulations on First Amendment grounds in this case rests in the hope that the 3rd U.S. Circuit Court of Appeals reverses Baylson’s ruling that FSC and the other plaintiffs failed to present factual evidence proving that private communications are actually being chilled by the 2257 Regulations.

"The court has concluded the government largely succeeded in defending the constitutionality of the statutes. Namely, the court finds Sections 2257 and 2257A and their corresponding regulations to be constitutional under the First Amendment, both as-applied and facially. It also finds the statutes and regulations to be constitutional under the Fourth Amendment, except for in one regard— the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record.”

In sum, the ruling means that the 2257 regulations are, unfortunately, alive and well, and I am sorry to say, likely to be so for at least many years to come. While it is likely that the Free Speech Coalition and the other plaintiffs will appeal the decision, obtaining a reversal of Baylson’s ruling will be an uphill battle.

The remaining best chance for invalidating the 2257 regulations on First Amendment grounds in this case rests in the hope that the 3rd U.S. Circuit Court of Appeals reverses Baylson’s ruling that FSC and the other plaintiffs failed to present factual evidence proving that private communications are actually being chilled by the 2257 Regulations. This goes to an issue that I think is one of the 2257 regulations’ constitutional vulnerabilities, namely that as written, the regulations are not limited to commercial applications only. This means, for example, that the 2257 regulations apply to private activities, such as husbands and wives engaged in a Skype or Facetime video call in which one or both are engaged in sexually explicit conduct.

Unfortunately, it is not at all certain that FSC and the other plaintiffs will be able to convince the 3rd Circuit to reverse Baylson’s ruling. This is because federal courts of appeal infrequently reverse lower courts

on the ground that they erred in their findings of fact based on evidence presented to them at trial.

But even if the 2257 regulations are invalidated on appeal, would that be the end of 2257? Unfortunately, it certainly would not, at least not any time soon. This is because constitutional invalidation of the 2257 regulations by the 3rd Circuit would not, by itself, invalidate the 2257 regulations throughout the country. It would invalidate the 2257 regulations only in the states within the jurisdiction of the 3rd Circuit (Pennsylvania, New Jersey and Delaware). The 2257 regulations would still be good law in the 10 states and the District of Columbia under the aggregate jurisdictions of the three other circuit courts that have previously ruled the 2257 regulations to be constitutional. The 2257 regulations would also continue to be good law in the rest of the states under the jurisdictions of the rest of the circuit courts that have not issued any ruling regarding the constitutionality of the 2257 regulations.

If the 3rd Circuit were to invalidate the 2257 regulations, there would, however, then be what is called a “circuit split.” This is a situation that occurs when two or more circuit courts of appeal have different interpretations of federal law. In such circumstances the U.S. Supreme Court is often called upon to provide the ultimate and final interpretation that will apply throughout the whole country.

But while the resolution of circuit splits is an important factor that the Supreme Court takes into consideration when it selects cases it elects to hear, there is simply no guarantee that the Supreme Court would choose to hear any case that would resolve the issue of the constitutionality of the 2257 regulations. And no one can force the Supreme Court to hear such as case.

But let’s say that FSC and other plaintiffs appeal Baylson’s ruling to the 3rd Circuit, and they prevail, and the 2257 regulations are struck down. Let’s also say that the government then appeals the decision to the U.S. Supreme Court, which then elects to take the case to resolve the resulting circuit split. Let’s even say that the U.S. Supreme Court then rules that the 2257 regulations are unconstitutional on the most likely ground for such invalidation, i.e., that they are overbroad and impermissibly burden speech because the 2257 regulations as written also apply to purely private, noncommercial communications. Now what? Would that mean that the adult entertainment industry would then finally be rid of the absurdly burdensome and onerous record keeping and labeling regulations? Would it be time to sing “ding dong the witch is dead”? Unfortunately, I don’t think so.

If the 2257 regulations are invalidated due to their application to purely private, noncommercial communications, in response, Congress could always just amend the law to make it applicable only to commercial communications. In fact, regardless of what the basis might be for a judicial invalidation of the 2257 regulations, Congress has the option of fixing the problem through new legislation. This, in fact, is exactly what Congress did in 2006 after FSC successfully obtained an injunction from the 10th U.S. Circuit Court of Appeals enjoining enforcement of the 2257 regulations in an earlier constitutional challenge.

In that case, in which I am proud to say I was one of FSC’s attorneys, we challenged, what was then, new “secondary producer” requirements imposed by the Department of Justice because they stood in clear contradiction to the language in the original 2257 statute passed by Congress which excepted from record keeping requirements any person engaging in an activity “which does not involve hiring, contracting for, managing or otherwise arranging for the participation of the performers depicted . . .” 18 U.S.C. §2257(h)(4). In January, 2006, the 10th Circuit Court of Appeals issued an injunction prohibiting the government from treating members of FSC as “producers” under 28 CFR 75 and from enforcing the record keeping requirements against FSC members to the extent that their activities did not constitute the hiring, contracting for, managing or otherwise arranging for the participation of the performers depicted in the content.

We obtained a great victory to be sure. But was that the end of the 2257 regulations? Hardly. On July 26, 2006 with much media fanfare on the White House lawn, President Bush signed the Adam Walsh Child Protection And Safety Act Of 2006 (“Walsh Act”). The Walsh Act addressed and obviated the unconstitutional action of the DOJ’s broadening of the definition of producers that was at the heart of our lawsuit. Congress did this through the Walsh Act by including, as a part of 18 U.S.C. §2257(h)’s definition of the word “produces”, virtually all of the DOJ’s impermissible “secondary producer” language the DOJ had wrongfully written into 28 CFR 75.

So even if FSC and the other plaintiffs are successful in appealing Baylson’s ruling, even eventually invalidating the 2257 regulations through an ultimate ruling by the U.S. Supreme Court that its applicability to private communications renders it impermissibly overbroad, Congress could always then simply remedy the constitutional infirmity through legislation amending the 2257 regulations to apply only to commercial communications.

To be sure Congress could also either simply not respond to a judicial invalidation of the 2257 regulations or it could completely rewrite the 2257 regulations. But I think neither of these responses to a Supreme Court invalidation of the 2257 regulations are likely. First, because I think it is unlikely that conservative republicans in Congress would simply just allow the adult entertainment industry to obtain a huge legal victory that simultaneously would leave the porn industry without any record keeping obligations to, as I am sure the politicians would put it, “ensure the protection of children from exploitation by pornographers”. It is likely that one or more conservative members of Congress would be quick to harvest the political benefit of socking it to the pornographers and the “liberal justices” by quickly introducing legislation to remedy the constitutional infirmity.

I also think that a complete start-from-scratch re-write of the regulations would also be unlikely, or at least unlikely to happen in a way that doesn’t make matters worse for the adult entertainment industry. This is because a complete re-write would take the time, energy and political capital of one or more congressional members to introduce and promote the passage of what would be an entirely new piece of legislation. Congressional members generally don’t do that unless they are politically motivated to do so. Since the adult entertainment industry does not now have, and will not likely have any time soon, any effective congressional lobbying ability, such motivation would not likely come from the porn business. Any political motivation for one or more members of congress to re-write the 2257 regulations would more likely come from one or more anti-porn lobbying groups of which there are more than a few. If that were to happen, I wouldn’t be surprised if such a re-writing of the 2257 regulations would result in regulations more onerous than the current ones.

Reality Check

Given the ruling in Free Speech Coalition vs. Holder, I suggest that it is time for a reality check, a time to look at the realities regarding the issues of the legality of the 2257 regulations and the adult entertainment industry’s ongoing requirements to comply with them.

I think this is particularly important at this time because in Free Speech Coalition vs. Holder, the government admitted that it terminated inspections under the 2257 regulations in late 2007 with no current plans to recommence them. Published reports of this admission has unfortunately led many in the adult entertainment industry to mistakenly believe that the 2257 regulations would no longer be enforced and that there was no longer any danger of prosecution under the 2257 regulations. Both of these beliefs are unfounded and could lead to catastrophic consequences for adult content producers that mistakenly rely on such beliefs.

So in sum, here is my six-point rundown of how I see the current reality of the 2257 situation.

1. The 2257 regulations are an outrageous assault on freedom of expression. In the nearly twenty years that they have been in force, they have done little but violate constitutional rights. They certainly do nothing to protect children. But while the 2257 regulations are vulnerable to judicial invalidation, the process is slow, uncertain, and not likely to produce a definitive resolution unless and until the U.S. Supreme Court issues a ruling in the matter.

2. If the 2257 regulations are eventually judicially invalidated by the U.S. Supreme Court, the political reality is that Congress would likely pass legislation directed to amending the law to address its constitutional infirmities. It is unlikely that any president, democratic or republican, would veto such legislation.

3. As things currently stand, the government has terminated inspections under the 2257 regulations, and like the Clinton Administration, the Obama Administration has shown no interest whatsoever in enforcing the law’s other provisions. This is certainly good news for adult entertainment content producers, as it appears that enforcement of the 2257 regulations is probably going to continue to be less likely under democratic administrations than republican administrations for the foreseeable future. But this should not be interpreted to mean that there is a guarantee of no 2257 Regulation enforcement while the democrats are in power. After all the 2257 regulations were legislated into existence by a democratic congress.

4. Sooner or later a republican president will be elected and the enforcement priorities at Department of Justice will likely change. Since it is likely that the next republican president will have been elected with the votes, and financial support of religious conservatives who abhor pornography, the regime change will likely cause a return to the kind of anti-adult industry hostility we’ve seen under recent republican administrations. It is clearly foreseeable that under a republican administration, pornography could once again become a hot button political issue. Religious conservatives have been demanding for some time that the government “do something” about the fact that pornography has become abundantly available for free to persons of all ages via the Web. Their ire is not likely to abate in the coming years as literally tens of thousands of Americans, including large numbers of young women and men, will also be commercially providing sexually explicit live cam content. It is not hard to see how the DOJ under a republican president may try to meaningfully reduce the online adult entertainment business through aggressive prosecutions.

5. If a future DOJ does commence aggressive prosecutions against the online adult entertainment business, what laws would they likely use? The obscenity laws? While that is always an option for the DOJ, obscenity prosecutions have become increasingly difficult for the government to win, especially regarding mainstream adult content. Prosecutions for 2257 Regulation violations would, however, likely be less difficult and uncertain for the government. This is because an adult content producer can easily violate the complicated 2257 regulations in numerous ways. A fact borne out by an FBI report to the DOJ in which the FBI reported that 86 percent of the 29 producers it inspected had some type of violation of the 2257 regulations. The binary nature of compliance with the 2257 regulations, i.e., either a party is in compliance with all of its requirements or the party is not, provides the government with what could be a very efficient weapon of mass destruction against large numbers of adult entertainment entrepreneurs and their companies.

6. Because the 2257 regulations are still the law, and because of the likelihood that the 2257 regulations will likely be enforced in some manner under a future republican president, I think that each and every adult content provider should do whatever is necessary to become familiar with the 2257 regulations and fully comply with their requirements, if they have not done so already. Anyone that says adult content producers should do otherwise is simply providing very bad and very wrong advice.

While it is true there will likely be no enforcement of the 2257 regulations in the foreseeable future under President Obama, the reality is that as long as the 2257 regulations are still in force, their enforcement, including for example, searches by the FBI, could be resumed at any time. Just because the government has stated that it is not now enforcing the law does not mean that it will henceforth be precluded from changing that position. Even Judge Baylson acknowledged this in his Memorandum, stating that a new FBI director, or a new Attorney General, could summarily negate previous Department of Justice policies of non-enforcement of the 2257 regulations. And even if there is no resumption of enforcement under President Obama, violations of the 2257 regulations are subject to a five-year statute of limitations. This means that violations today could be prosecuted by a DOJ under the next president, who just might be a republican.

I still have hope that some day adult content producers will not have to comply with the byzantine obligations current comprising the 2257 regulations. But given the legal and political practicalities, it looks like the 2257 regulations, or something similar to them, will be around for a long, long time.

This article is not intended to be, nor should it be considered to be, legal advice. If you have a legal question or other matter related to the any of the topics discussed in this article, I strongly urge you to contact our office at the number below or seek the counsel of another qualified and experienced adult entertainment attorney familiar with the legal matters discussed in this article.

Gregory A. Piccionelli is an entertainment attorney with experience representing adult entertainment companies. He can be reached at Piccionelli & Sarno at (818) 201-3955 or greg@piccionellisarno.com.


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