FSC's Suit Over 2257 Heads Back to Court Next Month

Rhett Pardon

PHILADELPHIA — A federal court next month will weigh the Justice Department's request to dismiss the Free Speech Coalition's legal challenge over 2257 inspections.

Philadelphia-based U.S. District Judge Michael Baylson today scheduled a hearing for Monday, Nov. 26, to consider the Justice Department's argument that the issue of deciding the constitutionality of the federal recordkeeping and labeling law is "unripe."

Justice Department attorneys, in recent court briefs, contend that given the absence of any ongoing inspection program and the uncertainty of future inspections, the Free Speech Coalition and other plaintiffs lack standing to pursue claims based on the 4th Amendment over unreasonable searches and seizures. The FSC and other defendants are seeking a restraining order over future 2257 inspections.

"To litigate plaintiffs' 4th Amendment claim now would likely involve a costly and time-consuming exploration of past inspections through depositions and other discovery mechanisms, but such efforts would, in the end, prove nothing regarding the conduct of future inspections, for  the reasons already explained," Justice Department attorneys said.

"On the other hand, a holding that plaintiffs' claim is premature would not cause any hardship to plaintiffs because, in the absence of an ongoing inspection program, they face no current prospect of being subject to inspections pursuant to 18 U.S.C. §§2257 or 2257A."

But FSC counsel Michael Murray, in an earlier court brief, said that the government's argument is untenable.

The FSC contends that nothing whatsoever prevents the attorney general from directing the FBI or Justice Department to conduct  warrantless inspections of the adult entertainment operators tomorrow.

So far, 29 inspections over 2257 have taken place, according to testimony from an FBI agent. Those inspections took place between July 2006 and September 2007, all pre-dating the case.

Murray noted that 18 U.S.C. §§2257 or 2257A continues to require the attorney general to submit annual reports to Congress about  them. He also noted the burden for adult entertainment operators of making those records available to the government.

"Plaintiffs  must comply with  the  statutes  and regulations — maintaining the requisite records, making them available for inspection  at their premises in conformance with the provisions governing  hours for such inspection, and providing requisite notice of their  availability  for inspection to the attorney general if they do not maintain at least 20 normal business hours per week," Murray wrote in a recent brief.

"That the FBI has not performed inspections recently, nor currently  allocated funds for  its inspection program does not relieve plaintiffs of their obligation to maintain records as required by the statutes and to make them available for inspection pursuant to the regulations’ terms. Failure to do so is punishable by imprisonment. Therefore the harm imposed by the statutes and regulations is immediate, concrete, direct and ongoing."

Besides the FSC, 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; Sinclair Institute, which operates sexual health clinics; 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.