The appeal is in response to U.S. District Judge Michael Baylson's decision last July to grant the government’s motion to dismiss FSC’s 2257 suit.
FSC attorneys Michael Murray and Lorraine Baumgardner filed the appeal against Attorney General Eric Holder, claiming the lower court erred in dismissing its complaint because the adult industry trade group presented plausible claims for relief under the 1st, 4th and 5th Amendments.
The FSC, on appeal, said that the statutory purpose of 2257 is designed to influence the content of speech and that 2257 is overinclusive.
"In imposing their burdens on expression depicting adults, the statutes do not directly and materially advance the government’s interest in combating child pornography," the appeal said.
The inspection regimen, FSC lawyers said in their appeal, violates the 4th Amendment over unreasonable searches and seizures.
"The regulations authorize governmental agents 'to enter without delay' the business premises and homes where the records are kept and to search through and seize private records and expression without a warrant," they wrote. "Refusal to permit the inspection constitutes a felony.
The FSC also said that the lower court erred in denying plaintiffs leave to amend their complaint to include an allegation that members of the Free Speech Coalition had been subjected to warrantless 2257 inspections.
Besides the FSC, the plaintiffs attached to the suit include the American Society of Media Photographers, which represents 7,000 members; Barbara Nitke, a teacher at the School of Visual Arts in New York and a commercial photographer; David Steinberg, a photographer and writer of sexual issues; Nina Hartley, a performer and website owner; and Michael Barone, a photographer.
The plaintiffs list also includes Dave Cummings, an adult industry performer who owns numerous websites; Tom Hymes, an adult industry journalist who runs a website; Sinclair Institute, which operates sexual health clinics; gay porn studio Channel 1 Releasing; Barbara Alper, a photographer; Carol Queen, a sexologist and feminist sex educator; Dave Levingston, a photographer; and Betty Dodson and Carlin Ross, who co-host a website.
FSC Executive Director Diane Duke told XBIZ that the industry goes to great lengths to make sure underage performers never appear on a set.
"2257 is over-reaching, over-burdensome and a law with which, for many," she said. "It is impossible to comply.
"FSC will continue to push for industry appropriate regulations. Special thanks to Michael Murray, Lorraine Baumgardner and Reed Lee for their work on this appeal."