Thursday, Jul 18, 2013    Text size: 

PHILADELPHIA — The federal statutes that mandate performer record-keeping for adult entertainment producers are constitutional under the First Amendment, U.S. District Judge Michael Baylson ruled Thursday.

Baylson also said that the statutes, 18 U.S.C. §§ 2257 and 2257A, are 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."

"The court has concluded the government largely succeeded in defending the constitutionality of the statutes," Baylson said.

Today's ruling comes after an eight-day bench trial where 21 witnesses presented testimony and over 300 exhibits were entered into evidence.

The Free Speech Coalition, along with 15 other plaintiffs, alleged in the long-running cased that they were subject to an unfair and unnecessary burden over the federal record-keeping laws.

"Producers under Sections 2257 and 2257A are not a uniform group – they include primary producers of commercial films, secondary retailers, photographers, and even couples who upload sexually explicit videos of themselves onto tube sites," Baylson said. "But the unity of the players in the industry was never the determinative factor in the administrative search cases.  

"Rather, it was the pervasiveness of laws aimed at ensuring the industry’s practices did not undermine the safety of the public, which justified the reduced privacy expectations of the businesses. And here, federal anti-child pornography laws are similarly extensive."

Baylson used the three-factor Burger test when he looked at whether warrantless inspections under 18 U.S.C. §§ 2257 and 2257A were “reasonable.”

"The first Burger factor asks whether there is a 'substantial' government interest that  informs the regulatory scheme. The third factor asks whether the application of the inspection  program provides 'a constitutionally adequate substitute for a warrant,' because the statute or  regulations inform businesses that 'inspections will be made on a regular basis' and limit the inspections in time, place and scope.   

"These two factors are satisfied with respect to the inspections authorized by the statutes. The governmental interest informing the regulatory scheme – combatting child pornography – is substantial. Meanwhile, the  statutes and regulations provide 'a constitutionally adequate substitute for a warrant'  because they notify producers that inspections can occur on a regular basis

"The record developed at trial reinforces that the inspections effectuated in 2006 and 2007 were far less intrusive than are searches effectuated pursuant to search warrants.

"The second Burger factor, however, poses more problems for the inspections program authorized by the statutes. The second Burger factor asks whether the warrantless nature of the inspection program is 'necessary to further [the] regulatory scheme.' In Burger, the court found this factor satisfied because stolen cars and parts often pass quickly through an automobile junkyard, [and] ‘frequent’ and ‘unannounced’ inspections are necessary in order to detect them.”   

"[The] records mandated by the [2257] statutes are so extensive that they cannot realistically be  manufactured on the eve of an impending search. Both FBI agents testified that it was highly unlikely that a producer could assemble Section 2257 records within 24-hours’ notice of an inspection.

"Further, in about nine of the 29 inspections conducted in 2006 and 2007, advance  notice was given, to ensure the producer or custodian of records was on site when the FBI team  arrived, and there is no evidence that it undermined the integrity of those inspections."

With the Burger test, Baylson concluded that producers of sexually explicit depictions as defined by Sections 2257 and 2257A constitute a “closely regulated” industry for the purposes of the administrative search doctrine, and therefore subject to inspections.

Baylson in his 74-page findings gave the FSC only one victory in the case: Inspections at bona fide residences of producers, without prior notice, violates the Fourth Amendment.

"The court is mindful that were the FBI to revive the Section 2257 inspections program, and were the DOJ to decline to update the regulations so as to require advance notice at inspections of residences, a producer could bring a lawsuit requesting an injunction at that time," Baylson said.

Bayslon said that as a result of his findings, the "remedy of an injunction is not warranted at this time."

"The evidence shows the government has not conducted a Section 2257 inspection since 2007. Rather, the FBI dismantled the inspections program in early 2008, and there has been no intent or effort to revive it. It is moribund," Baylson said.

"As a result, plaintiffs do not face a realistic threat of 'irreparable harm' – due to an inspection – at any point in the foreseeable future," he said. "A judge must take a deep breath before enjoining the nation’s top law enforcement officer from doing something that the Department of Justice has shown no interest in doing for the last six years.

"Under these circumstances, the court believes it would be an abuse of  discretion to enter an injunction against the attorney general."

Jeffrey Douglas, board chair of the Free Speech Coalition, said that the adult industry trade group is reviewing today's 74-page opinion over federal record-keeping statutes 18 U.S.C. §§ 2257 and 2257A.

Douglas hinted at an appeal and said that "many of Judge Baylson’s findings in both First Amendment and Fourth Amendment areas provide a strong basis for reversal and the ultimate dismantling of 18 U.S.C. § 2257."