U.S. Judge: Key Portions of 2257 Are Unconstitutional
PHILADELPHIA — A federal judge today, siding with the Free Speech Coalition and other plaintiffs, declared unconstitutional key portions of 18 U.S.C. §§2257 and 2257A, the federal performer record-keeping statutes for adult entertainment producers.
U.S. District Judge Michael Baylson today entered a judgment in favor of the adult entertainment trade group and against the government over portions of 2257 that require recordkeepers to "make such records available to the attorney general for inspection at all reasonable times,” as well as its implementing regulations under 28 C.F.R. §75.5.
Baylson said that those elements of 2257 were facially unconstitutional under the Fourth Amendment, which protects against unreasonable searches and seizures.
J. Michael Murray, one of the attorneys representing the FSC in the long-running case, told XBIZ that the outcome over the Fourth Amendment issues in the case was “very exciting” and that Baylson’s ruling represented a “great achievement.”
“What still remains in the case are the First Amendment issues,” Murray said. “But with this judgment, the government can’t come unannounced seeking records.
“There still is more litigation, and I recommend for adult producers to comply [with 2257 requirements]. Ultimately, we are trying to [dismantle] the entire statutory scheme.”
The Free Speech Coalition and various performers and industry stakeholders sued the government over the laws, holding that the inspection provisions of the statutes are facially unconstitutional.
Baylson’s ruling over the Fourth Amendment issues in the case follows a 3rd U.S. Circuit Court of Appeals judgment made against the government in August.
The case then moved back to Baylson’s courtroom 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.
Today, Baylson ruled for the FSC and Murray, along with co-counsel Lorrie Baumgardner.
Murray said that the next phase of the case will move to the First Amendment issues. He told XBIZ that he has a conference call scheduled with Justice Department attorneys and Baylson later this month.
Upon comment, Lawrence Walters, an industry attorney at Walters Law Group, told XBIZ: "This judgment makes the 3rd Circuit ruling official, and confirms that the requirement of producing 2257 records without a warrant violates the Fourth Amendment."
Industry attorney Marc Randazza of Randazza Legal Group told XBIZ late Tuesday that he was not surprised of Baylson’s decision.
“With the great legal team they had, this is no surprise,” Randazza said. “[They’ve been] a great service to the Constitution.”