FSC Replies to Justice Department Over 2257 Appeal

Rhett Pardon

PHILADELPHIA — The Free Speech Coalition on Thursday filed a reply brief to a Justice Department's brief urging the 3rd U.S. Circuit Court of Appeals to uphold the dismissal of the FSC's lawsuit targeting 18 U.S.C. § 2257, the federal record-keeping and labeling law.

The FSC's latest brief attempts to refute all of the Justice Department's arguments after the case was dismissed by U.S. District Judge Michael Baylson. The FSC has all along said that the statutory purpose of 2257 is designed to influence the content of speech and that 2257 is overinclusive.

Attorney Jeffrey Douglas, the FSC's board chair, told XBIZ that the reply brief maps out why the federal appeal by the adult industry trade group, as well as its 14 co-plaintiffs in the case, has merit and why the case should continue against enforcement of 2257.

"The law has substantially changed because of the Connections case and then there's brand new changes to the law, as well," Douglas said. (Connection Distributing vs. Holder was another case challenging 2257 record-keeping rules.)

In the reply brief delivered to the 3rd Circuit this week, FSC attorneys J. Michael Murray, Lorraine R. Baumgardner and Reed Lee, argued that 2257 does not advance an important governmental interest in a direct and material way, that the record-keeping laws are not narrowly tailored and that the statute burdens substantially more speech that is necessary.

The Justice Department relies heavily in its argument against appellate review on a 1986 Attorney General’s Commission on Pornography report

"[The Justice Department] claims that the legislation was enacted to address the risk that underage performers might be used in the production of adult films," the FSC said in its reply brief. "As support, the government points to evidence presented to Congress more than 20 years ago showing that the performers appearing in adult films were youthful looking.

"This singular harm is offered by the government as the entire justification for the statutory scheme that imposes its burdens on all constitutionally protected sexually explicit speech involving adults. The problem is, no evidence has been adduced to demonstrate that this harm exists."

FSC attorneys further said that 2257 has been amended to expand its reach, increase its burdens and stiffen its penalties.

"It now covers, not only actual sexual conduct, but simulated sexual conduct and the lascivious display of the genitals," the FSC's brief said. "It now is enforced by direct criminal sanction — not a rebuttable presumption — which, through the years has increased from a term of imprisonment of two years to a term of imprisonment of five years. It now applies not only to visual depictions  in magazines, books and films, but to depictions posted on the Internet.

"It now punishes refusal to allow the warrantless search and seizure of the requisite records, and it now permits the government to use the records it requires producers to keep as evidence against them in obscenity prosecutions.

The brief also points to other challenges, such as that the appellants have presented a viable claim under the 4th Amendment, a contention that Douglas believes is key to the FSC's appeal.

"You now have 100,000 locations that could possibly be inspected — many of them residences," he said. "This emphasis on search and seizure that is just insane.

"The trial court ignored the 4th Amendment argument over unreasonable searches and seizures, and now you have some who aren't in the porn business but are on social networks that could be breaking the law because they post a nude picture."

Douglas lauded the attorneys handling the reply brief for the FSC's appeal.

"In this reply, this particular brief was handled masterfully," Douglas said. "I am very impressed by the brief, particularly since it was written in such a concise way because of court rules that mandate decreasing page limits.

"Reply briefs are always a challenge because you have to respond to the other side's argument,"  he said "You have to respond to anything and everything that is facially available, and you have to reiterate your point.

"In this reply, this particular brief was handled masterfully," he said. "I am very impressed by the brief, particularly since it was written in such a concise way because of court rules that mandate decreasing page limits."

Douglas couldn't say what timeline will be mapped out for a three-judge panel of the 3rd Circuit to decide the case.

"There is simply no telling when there will be a decision by the 3rd Circuit, but you can be safe to say that basically the written work is over with and the court will eventually sent the case for oral argument," he said.

Besides the FSC, the plaintiffs attached to the suit include the American Society of Media Photographers, which represents 7,000 members; Barbara Nitke, a teacher at the School of Visual Arts in New York and a commercial photographer; David Steinberg, a photographer and writer of sexual issues; Nina Hartley, a performer and website owner; and Michael Barone, a photographer.

The plaintiffs list also includes Dave Cummings, an adult industry performer who owns numerous websites; Tom Hymes, an adult industry journalist who runs a website; Sinclair Institute, which operates sexual health clinics; gay porn studio Channel 1 Releasing; Barbara Alper, a photographer; Carol Queen, a sexologist and feminist sex educator; Dave Levingston, a photographer; and Betty Dodson and Carlin Ross, who co-host a website.

FSC's reply brief