Jun 8, 2017 4:00 PM PDT    Text size: 

PHILADELPHIA — The Free Speech Coalition re-emphasized in a reply brief today that the federal government has failed to establish the existence of a problem the 2257 statutes were purportedly enacted to address and that they are unconstitutionally overbroad.

The FSC’s brief was filed by attorneys J. Michael Murray and Lorraine R. Baumgardner in response to arguments made by the Justice Department in mid May.

The Justice Department’s brief last month said that the government continues to have a “compelling interest” in protecting children from sexual exploitation by pornographers and that 18 U.S.C. §§ 2257 and 2257A satisfy strict scrutiny’s narrow tailoring requirement.

(Strict scrutiny presumes a law to be invalid unless the government can prove the law's constitutionality and demonstrate a compelling governmental interest in keeping it.)

But the FSC, in its brief filed today, elaborated that the statutes don’t survive strict scrutiny.

“It is the rare case in which the government can clear strict scrutiny’s formidable hurdles,” FSC attorneys wrote. “This is not that rare case.”

FSC counsel went on to emphasize that the statutes are not narrowly tailored and that the government must show that the statutes target and eliminate no more than the exact source of the “evil” they seek to remedy. 

Quoting a U.S. Supreme Court ruling, the FSC attorneys said: “Narrow tailoring under strict scrutiny is to be measured by ‘the standards of Versace,’ not  those of ‘Omar the tentmaker.’”

“[T]o survive strict scrutiny, the government must prove that a plausible, less restrictive alternative to the challenged regulation is not effective,” FSC counsel wrote. “Whether the burdens imposed by a content-based regulation on speech are incremental or acute does not alter what the government must show. And it has not demonstrated that a law that limits its requirements to expression depicting people who could reasonably be confused as minors would be less effective in achieving its statutory objective.”

Counsel for the FSC, among numerous points made, said that the government has failed to produce evidence establishing criminal laws prohibiting and punishing child pornography are not effective alternatives to the 2257 statutes.

The FSC said that the Justice Department also has not shown evidence establishing a recordkeeping law limited to primary producers of sexually explicit expression is not an effective alternative to the statutes.

"The government offers no evidence demonstrating that a law limiting the obligation to keep records of performers’ ages on the people who create sexually explicit expression in the first instance would not be effective in preventing the use of minors in producing that expression. It offers argument and conjecture instead,” FSC counsel said.

“The government argues that imposing requirements on secondary producers adds to the effectiveness of the statutory scheme because it requires secondary producers to verify that the material is not child pornography. But again, strict scrutiny is not satisfied by showing that the challenged regulation has some additional ability to achieve the government’s objectives.”

The 29-page brief also asked for the court to also consider the legitimate standing of the plaintiffs in the case — the FSC and American Society of Media Photographers. The government had argued that the “nebulous nature of the adult entertainment industry of adult film industry” weighs against associational standing as plaintiffs in the longstanding case.  

“Strict scrutiny’s narrow–tailoring and least restrictive means requirements do not evaluate individualized applications of presumptively invalid content–based regulations,” FSC counsel said. “It is enough to show that the statutes apply to plaintiffs’ members, and they must comply with them. The constitutionality of the statutes here does not depend on ‘the degree to which’ each member’s ‘speech is unnecessarily burdened.’ Therefore, plaintiffs FSC and American Society of Media Photographers have standing to assert a challenge to the statutes under strict scrutiny on behalf of their memberships.”

FSC, in its conclusion to the brief filed today, asked for the court to enter judgment declaring the 2257 statutes and their implementing regulations unconstitutional and permanently enjoining their enforcement.