Analysis: What Today's 2257 Ruling Means

Today was a very interesting day in the adult industry’s fight against the constitutionality of 18 U.S.C. §§2257 and 2257A. The 3rd U.S. Circuit Court of Appeals reversed the lower court’s earlier decision to grant a motion filed by the government to dismiss the constitutional challenges of the latest amendments to 18 U.S.C. §2257 and 2257A. While today’s decision is certainly not even close to winning the war, today’s decision gives the adult industry the chance to be heard and another day to fight. 

As almost everyone in the adult industry is aware, 18 U.S.C. §2257 and 2257A are the federal statutes governing the recordkeeping, labeling and inspection requirements related to the production and publication of sexually explicit material.  Led by the Free Speech Coalition, a group of individuals and entities from various facets of the adult industry have sued in an attempt to have the latest version of the statutes deemed unconstitutional and thus unenforceable. The group of plaintiffs have previously sought the issuance of an injunction against the enforceability of the statutes under the theory of 1st and 4th Amendment violations.      

The procedural history of this case looks something like this:

  • October 7, 2009 – Plaintiffs filed suit challenging the constitutionality of the statutes and filed a motion for preliminary injunction;
  • December 14, 2009 – The government responds to the plaintiffs’ suit by filing its opposition to plaintiffs’ motion for a preliminary injunction and a motion to dismiss plaintiffs’ suit in its entirety;
  • April 5, 2010 – Plaintiffs’ request that the court allow them the opportunity to amend their complaint in response to the government’s positions;
  • September 17, 2010 – District court grants the government’s motion to dismiss and denies plaintiffs’ motion for leave to amend;
  • April 16  – The 3rd Circuit reverses the district court’s decision from Sept. 17, 2010, and orders that the case be remanded to the district court for further proceedings.

Specifically what happened today is that the appeals court ruled that the plaintiffs’ claims brought pursuant to the 1st Amendment and the 4th Amendment should not have been dismissed by the district court.  The appeals court also ruled that plaintiffs’ claim for injunctive relief for violations of the 1st and 4th Amendment should also not have been dismissed.  Finally, the court ruled that the district court erred when it denied the plaintiffs’ request to amend their 4th Amendment claim.  All of these issues will be sent back to the district court for further proceedings.  It is noteworthy that today’s ruling did not reverse the district court’s dismissal of plaintiffs’ challenges related to the 5th Amendment (Equal Protection Clause) and the 5th Amendment (Privilege Against Self-incrimination Clause).     

So what does this all mean?  Make no mistake about it, today is a very good day for the adult industry and their constitutional challenges of 18 U.S.C. §2257 and 2257A.  All of the parties involved and their lawyers should be commended for their hard work and determination.  However, it’s important to realize that this fight is far from over and it’s going to be quite some time before a final ruling on the constitutionality of 18 U.S.C. §2257 and 2257A is made and the appeals process runs its course.  As it stands today, 18 U.S.C. §2257 and 2257A are still valid laws and must be adhered to.    

As I have stated previously in this article, today’s ruling is in no way the final ruling with regard to the constitutionality of 18 U.S.C. §2257 and 2257A. However, I am in agreement with today’s ruling for multiple different reasons.  When the district court ruled in favor of the government in September of 2010 and dismissed plaintiffs’ case so early in the litigation process, it robbed the plaintiffs’ of their opportunity to present their case and the complex facts involved.  In today’s majority opinion, there seems to be a clear finding that the district court dismissed the case prematurely and that more information was necessary to develop a record sufficient for the district court to appropriately rule.  In today’s majority opinion, Judge Smith, was clear that the plaintiffs’ 4th Amendment argument requires the consideration of “concrete factual context when determining the constitutional validity of a warrantless search.”  Judge Smith indicated that “the factual context is necessary for determining whether the government’s conduct was a “search” under the 4th Amendment.” Additionally, with regard to plaintiffs’ 1st Amendment challenge, Judge Smith indicated that “plaintiffs should be afforded the opportunity to conduct discovery and develop the record regarding whether the statutes are narrowly tailored.” To this regard, I do not think Judge Smith could have been any clearer.

One of the more interesting aspects of today’s opinion comes from a concurring opinion written by Circuit Judge Rendell.  Judge Rendell states that he “agrees with the majority opinion that the district court acted prematurely when it dismissed plaintiffs’ 1st and 4th Amendment claims at the pleading stage, and, accordingly, concur in the judgment.” Judge Rendell also concludes that “the administrative-search exception to the 4th Amendment’s warrant requirement does not justify the warrantless inspections authorized under sections 2257A.” I suspect that Judge Rendell’s concurring opinion and his analysis will be used by plaintiffs quite a bit as this case progresses. 

Today was certainly a very good day for the plaintiffs involved and their attorneys but I would continue to urge caution in thinking that this is in any way a preview of things to come. These statutes are still valid and everyone in the adult industry must adhere to their obligations. My friend and colleague Larry Walters would agree and further state that “This is certainly an encouraging development in the 2257 battle. The FSC and its talented legal counsel should be congratulated for continuing the fight, and forcing the trial court to consider its legal challenges to the statute.  But a decision on the merits is still a long way off. This appellate decision should not be interpreted as a basis for non-compliance with 2257 obligations. The statute is still presumed enforceable and both webmasters and content producers should remain attentive to compliance obligations, particularly given the uncertain results of the upcoming presidential election.

Corey Silverstein is the managing and founding member of the Law Offices of Corey D. Silverstein, P.C.  Corey can be reached through or by email at