ACLU, EFF File Amicus Brief in FSC's Appeal of 2257 Case

Rhett Pardon

PHILADELPHIA — In an amicus brief filed Monday, the ACLU and the Electronic Frontier Foundation sided with the Free Speech Coalition and other co-plaintiffs, asking the 3rd U.S. Circuit Court of Appeal to reverse a lower court ruling finding the federal record-keeping statutes for adult producers constitutional.

U.S. District Judge Michael Baylson last year found 18 U.S.C. §§ 2257, 2257A 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 case is now on appeal at the 3rd Circuit.

The ACLU and EFF told the 3rd Circuit in the friend-of-the-court brief that they “seek to protect the rights of the millions of ordinary Americans who create sexually explicit ‘depictions’ for personal non-commercial use that put them at risk of criminal liability under 18 U.S.C. §§ 2257 and 2257A.”

The groups said that there is nothing narrow about the statutes, and that it stomps on free speech in a wide swath. They also noted that the district court should not have relied on governmental assurances relative to how the Justice Department would apply the statute.

Further, the groups said that the statute as written unnecessarily burdens those who might be “sexting” on a cellphone or those who use a social network or partake in adding content to tube sites. They also said that statute applies to a wide variety of professionals who use sexual images in their jobs for purposes completely unrelated to adult entertainment.

It covers a broad array of sexually explicit speech, and requires even private individuals who have produced images in the context of their own intimate relationships unintended for public distribution to label those images with identifying information; wait at home 20 hours a week in case the government should wish to drop by unannounced (or hire a third-party custodian), or run the risk of a felony conviction and up to five years in prison.”

Because it is obvious that the Constitution forbids Congress from criminalizing personal sexual expression, even the government itself has urged the court to construe the statute to apply only to depictions that are created for commercial sale or trade, the groups said.

“Unfortunately, however, the statute is not so limited; it clearly applies as well to noncommercial personal expression,” the groups said. “And as this court already held when it reversed and remanded this case to the district court, the statute cannot be saved by construing it narrowly when Congress chose instead to write it so broadly.”

Attorneys J. Michael Murray and Lorraine Baumgardner, representing the FSC, have asked the 3rd Circuit panel to reverse Baylson's ruling and remand with instructions to enter a judgment declaring 18 U.S.C. §§ 2257, 2257A and their implementing regulations unconstitutional under the First and Fourth Amendments and permanently enjoining their enforcement.

View amicus brief