UPDATED (11:30 a.m. PDT) — Additional reaction from industry attorneys on today's judgment.
PHILADELPHIA — In a big victory for the Free Speech Coalition, the 3rd U.S. Circuit Court of Appeals today vacated and remanded a lower court’s July 2013 ruling that held that performer record-keeping for adult entertainment producers are constitutional.
Jeffrey Douglas, FSC chair and industry attorney, called the judgment "one of the greatest adult industry victories in decades."
"The federal government has lost," Douglas told XBIZ. "Most of 2257 is now unenforceable due to its violation of the 4th Amendment. Because of the strict scrutiny standard required by the 3rd Circuit, we are likely to prevail on our 1st Amendment claims as well when we return to the trial court. 2257 will then be truly dead.
"No expression of gratitude is adequate for our lawyers Michael Murray and Lorraine Baumgartner. This ruling applies only in the 3rd Circuit. In the rest of the country, only members of the Free Speech Coalition (and the other plaintiffs) get the benefit. That's a pretty powerful incentive to join your trade association."
The 3rd Circuit vacated U.S. District Judge Michael Baylson’s decision that held the statutes, 18 U.S.C. §§ 2257 and 2257A, constitutional under the 4th Amendment and also remanded the case to the lower court in Philadelphia to determine whether the statutes withstand strict scrutiny, which presumes a law to be invalid unless the government can prove the law's constitutionality and demonstrate a compelling governmental interest in keeping it.
The 3rd Circuit, in the judgment, held that the inspection provisions of the statutes are facially unconstitutional under the 4th Amendment.
“This case reaches us for the third time and requires us to consider the import of two recent Supreme Court cases, Reed v. Town of Gilbert,135 S. Ct. 2218 (2015), and City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015), on the constitutionality of the recordkeeping, labeling, and inspection requirements set forth in 18 U.S.C. §§ 2257 and 2257A and their accompanying regulations,” the court said in its opinion today.
“In light of Reed, we determine that the statutes are content based, and therefore require strict scrutiny review under the First Amendment.”
In the next step, the federal government could file a petition for rehearing and rehearing en banc, or consider whether it should be reviewed by the U.S. Supreme Court. Or the case could go back on remand and the lower court judge, Baylson, would carry out the 3rd Circuit's instruction to test the statutes under strict scrutiny.
The FSC, 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.
The guidelines for enforcing 2257 require producers of sexually explicit material to obtain proof of age for every model they shoot, and retain those records. With 2257, federal inspectors are able to launch inspections of these records and prosecute any infraction.
Upon comment, Baumgartner, who along with Murray argued the appeal, told XBIZ: “Congratulations! You've won a great victory. The court agrees with us that strict scrutiny applies to all our 1st Amendment claims, vacates the district court's decision upholding the statutes, and remands for the district court to evaluate the statutes under strict scrutiny. It also expands our relief under the 4th Amendment and declares 2257(f)(5), 2257A(f)(5), 2257(c), 2257A(c), and 28C.F.R. 75.5 facially unconstitutional under the 4th Amendment."
Industry attorney Marc Randazza told XBIZ: "With Michael Murray and Lorrie Baumgardner arguing a 1st Amendment case, always put your money on a win for freedom."
"I want to congratulate Mike Murray for his work, on behalf of the Free Speech Coalition, on proving – repeatedly in front of a hostile judge – that 2257 is unconstitutional," industry attorney Allan Gelbard told XBIZ.
"Many of us in First Amendment Lawyers Association have argued this statute was unconstitutional 'root and branch' as long as it has been on the books," Gelbard said. "Mike is to be commended for his tireless work on this case.
"The FSC has been battling this unconstitutional law for years and disserves special thanks and credit for its tireless work as the preeminent trade association for the adult entertainment industry."
Joe Obenberger, an industry attorney, said, "It's a great decision and the FSC's lawyers whose tireless efforts accomplished this result deserve great credit."
"It can't be emphasized enough that this decision does not end the story," Obenberger told XBIZ. "In the 6th U.S. Circuit Court of Appeals, just a few years ago, another split 2-1 victory was taken away be an en banc decision, ending that case unfavorably for adult producers.
"This case is today remanded to the trial court to consider the record-keeping part of the law under the strict scrutiny test and it notes that sometimes statutes can and do survive challenges under that high test," Obenberger said. "Finally, should Section 2257 be invalidated, and should the government petition the U.S. Supreme Court for review, the odds are far above average that the high court will take the case for its own review, reconsidering each of the victories achieved today.
"Exactly because three judges of the 3rd Circuit disagreed about which of two doctrines articulated by the Supreme Court, one announced in Reed pretty recently, and another line of cases dealing with 'secondary effects' that's been developing for four decades should control, it's a case appropriate for the Supreme Court to use as a vehicle to determine if Reed really means what it says, if the secondary effects doctrine survives Reed, and whether the Supreme Court will distinguish its holding in Reed from issues involving adult entertainment, brick and mortar, internet, or both.
Obenberger went on to say that "Bob Dylan famously sang that there's no telling who's to win while the wheel is still in spin."
"These issues are still very much alive until the wheel stops spinning — sometime in the future, perhaps years from now," he said. "While today's developments are more than encouraging about where 2257 is headed, it would not be smart to bet the farm on the hope that when the courts are done, 2257 will be wholly invalidated. We all hope so. But until final resolution, the smart producer will continue to comply with all of the 2257-related obligations. All of them."
Industry attorney Corey Silverstein said "there is certainly reason to celebrate today and many deserve praise, especially Michael Murray, Lorraine Baumgartner and the FSC."
"Make no mistake about it, the FSC got a big win but at the same time it’s important to remember that 2257 remains valid and enforceable law and this war isn’t over yet," Silverstein said. "The fact that the court agreed with the FSC, in that strict scrutiny, applies to all of the 1st Amendment claims and sent the case back to the federal district court for further proceedings probably resulted in a pretty miserable day for the government and its counsel.”
Industry attorney Lawrence Walters told XBIZ: “This appears to be an astounding victory both for the adult industry, and for 1st Amendment jurisprudence in general. The ruling may have tremendous impact on any governmental attempt to impose restrictions on speech based on its erotic content.”
“Importantly, the records-keeping obligations have not been struck down (yet), so producers are encouraged to continue their compliance efforts until the issues are fully resolved.”