Courtrooms in the Cloud: For 2257, What Comes Next?

J.D. Obenberger

In resolving the latest assault against 18 U.S.C. § 2257, a three-judge panel of the 3rd U.S. Circuit Court of Appeals roundly rejected the Free Speech Coalition’s broad assault on the substantive provisions of 2257, largely centered on arguments arising from the First Amendment.

But curiously the 3rd Circuit gave the Department of Justice a victory that could be fairly called “pyrrhic” by also determining that its current inspection scheme violates important privacy rights protected by the Fourth Amendment.

The U.S. Supreme Court has never shown eagerness to examine 2257 in its prior opportunities though the attorneys involved now probably hope that the third application for certiorari will be the charmer.

The 3rd Circuit found offense to protected constitutional values because those inspections need not be based on probable cause of a violation of the law and were not authorized under a warrant. The 3rd Circuit judges took special note of the law’s requirement that the records be made available for no fewer than 20 hours per week but found that the trial record in the district court contained insufficient evidence as to whether the burden imposed on producers under this requirement was justified by any legitimate goal or objective of the law.

Accordingly they remanded the case back to the trial judge (for the second time) to determine the weight of that burden in relation to the statute’s justifying purpose. The court also specifically reserved any ruling about the constitutionality of 2257 concerning producers of exclusively “mature” content or content produced by private individuals for purely private use: the court determined that it did not need to reach those issues.

Lawyers working for adult industry clients have been trying to convince federal courts since at least 1988 that 2257 violates the First Amendment. The history of these lawsuits is checkered, marked by some small, mainly collateral victories here and there (that have resulted in changed statutes and regulations) and at least two major judicial victories, each of which however, was taken away after further litigation and/or amendment of the statute.

These efforts were started in the District of Columbia in American Library Association. vs. Thornburgh, 713 F.Supp. 469 (D.D.C. 1989) and there was initial success there against an importantly different version of the statute; at that time, the statute went beyond a mandate for record-keeping and created a presumption that the model was a minor for those who did not create and maintain the required records.

The district court had no trouble invalidating the record-keeping provisions and the presumption as violations of the First Amendment and due process. The government took an appeal, but in the meantime, it amended the statute to remove the presumption. On eventual remand, the district court again held the statute unconstitutional on First Amendment grounds. In a 2-1 decision of the court of appeals, the district court was reversed and the law was upheld. En banc review was denied and the Supreme Court denied certiorari. (All of these decisions and amendments are available at http://www.xxxlaw.com/section-2257/cases.html.)

The next high watermark of the attack on 2257 was the decade-long litigation before federal courts sitting in Ohio. A highly fractured decision of a 6th U.S. Circuit Court of Appeals Circuit panel determined the statute to be unconstitutional, but this decision was vacated in an en banc decision of all of the judges of the 6th Circuit in Connection Distributing Co. vs. Kiesler, 557 F.3d 321 (6th Cir., 2009) and the U.S. Supreme Court again refused to consider a decision supporting 2257 for the second time.

In other words, we have been in similar, analogous positions before, and in the words of Bob Dylan, there is no telling who’s to win while the wheel is still in spin. How this all will resolve is still quite uncertain and it will be several years at the earliest before this saga is concluded. It is also possible that effect of this decision will be confined to the 3rd Circuit, maybe for a long time to come.

Because the decision emerging in the Free Speech Coalition case is split and each party has lost to some extent or another, it is the option of either party in the present posture of the case to seek en banc review before the panel of all sitting judges in the 3rd Circuit or to seek review by certiorari in the U.S. Supreme Court. It is almost certain that at least one of the parties, if not each of them, will seek review. Each is able to do so now, without waiting for the remand ordered by the court for the purpose of examining requirement of the 24-hour minimum weekly availability for inspection, and indeed, for procedural reasons, it is smarter to do so now, before that trip back to the district court. I expect at least one of the parties to move for en banc review in the immediate term. (There are those who believe that the panel of three judges who decided this case may not share as broad a view of the First Amendment's protections as generally held among the majority of judges sitting on the 3rd Circuit, and they hold hope that the whole composition of the court is likely to vote for such review — and potentially come to a decision more favorable to the FSC.)

A decision to grant en banc review would automatically vacate the recent decision of the three-judge panel. The U.S. Supreme Court has never shown eagerness to examine 2257 in its prior opportunities though the attorneys involved now probably hope that the third application for certiorari will be the charmer. Tilting in favor of hope for Supreme Court attention is the 3rd Circuit’s determination that the administrative inspection called for violates rights of privacy. It is, of course, entirely possible, that the Supreme Court may limit any review it may grant to the 3rd Circuit’s invalidation of the inspection regulations and refuse to take the First Amendment issues. If en banc review is granted, and should the collective judges of the circuit find the First Amendment arguments to prevail against the constitutionality of the scheme, there would be a very substantial likelihood that the Supreme Court will take the case.

It is possible that both en banc review and certiorari will be denied, that the case will return to the district court for a hearing on remand, and that its decision will, again, be appealed to the 3rd Circuit — at which point, another window opens for en banc review and certiorari to the Supreme Court. This just may take a few years.

And if history teaches us anything germane, it is that Congress may change the picture by legislating in 2257, particularly the inspection requirement, and the Justice Department may also consider changes in the Regulations. In the meantime, it is important to remember that this decision is binding precedent (after the mandate issues) in only the states of the 3rd Circuit, Delaware, New Jersey and Pennsylvania at least unless and until it is resolved by the supreme court. Should any cases under 2257 arise elsewhere, it should have some powerful persuasive effect, at least, perhaps, outside the 6th Circuit.

So, the situation remains murky enough now so that no one can do more than speculate about how the FSC case involving 2257 will eventually end. In the meantime, a few observations are in order.

First, it would be a most serious mistake, with the most critical potential consequences, for members of the adult industry to slough off on strict 2257 compliance. At least outside the 3rd Circuit, no provision of law stands in the way of resumed inspections — and for some years, it has been a crime to refuse inspection. An argument may be made that it may be both shrewd and politically smart for the DOJ to revisit the subject of inspections, though doing so carries some risk, too. It is true that in any criminal prosecution outside the Third and 6th Circuit, any of the arguments advanced in this case may be argued for the suppression of evidence or against the validity of the statute and regulations, but it is far less expensive and avoids the most serious kind of risk to comply.

Most importantly, a significant risk exists that the 3rd Circuit’s recent decision concerning unannounced inspections with neither probable cause or warrant will survive — and that changes to the statute and/or regulations may find one or another way to provide the government access to those records. The smart operator will comply fully. The kind of operator who would consider the present situation as an opportunity to ignore or neglect obligations is probably the kind who makes unacceptably risky decisions in every other sphere of this professional life. The smart purchaser of adult content will continue to require proof of compliance.

Second, there was not a syllable of sympathy concerning the costs of compliance to commercial pornographers, big or small and much language discounting their complaints about the burden it imposes. The evidentiary record concerning this may get better after the remand which has been ordered, but that’s not certain.

Third, much has been left unresolved in this litigation concerning images created privately (and sometimes later distributed publicly), though this issue has always had the potential of centrality as an issue — as hinted by the 3rd Circuit in its prior remand of April 12, 2012. In the end, the parties took that issue away from center stage, but the 3rd Circuit’s decision suggests that it remained more affected by privacy issues than communicative and expressive freedom. Issues concerning how far 2257 can be applied must be addressed soon because evolving community values have begun to accept depictions of actual sex on television news when it is relevant to a criminal prosecution. Albeit the actual point of insertions and much else has been obscured, brief but unmistakable moving picture depictions of beach sex can be found in broadcast news, See, for example, https://www.youtube.com/watch?v=mbC9skeert0.

Finally, do not expect a final determination on 2257 any time before the next presidential election.

J.D. Obenberger has aggressively defended adult businesses of every kind, worldwide, for more than 20 years in Chicago. He can be reached at obiwan@xxxlaw.net.

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