Federal Judge's Recent 2257 Order Is Released

PHILADELPHIA — U.S. District Judge Michael Baylson has released his memorandum to dismiss in part the Justice Department's motion to toss the Free Speech Coalition's 4th Amendment privacy claims over 18 U.S.C. § 2257.

The FSC, which filed suit against the government three years ago along with more than a dozen other plaintiffs, asserts that the federal record-keeping law for porn producers is unconstitutional because it violates constitutional protections against unreasonable search and seizures.

Sections 2257 and 2257A impose a record-keeping requirement on producers of sexually explicit materials and require that they make such records available to the government for inspection at all reasonable times.

In the court document released yesterday, Baylson said the FSC and other plaintiffs face a substantial possibility of injury as a result of the operation of the statute and that changes made to 2257 and 2257A in 2008 do not render the 4th Amendment claim unripe.

In 2008, the Justice Department modified 2257 to provide visual depictions of simulated sexually explicit conduct fall within the scope of materials for which the record-keeping requirement is triggered; actual lascivious exhibitions of the genitals or pubic area are also within the scope of materials triggering the requirement; and producers may use third-party custodians to store their records.

"The government contends these changes make the 2006-2007  inspections outdated and irrelevant, thereby depriving this court of a factual basis upon which to assess Section  2257’s constitutionality, and thereby making the 4th Amendment claim unripe. Not so," Baylson wrote in the memorandum. "The 2008 changes will not cause every inspection in the future to be materially different from those in the past. The  broader scope of images for which the recordkeeping requirement is triggered will not lessen the invasiveness of future searches."

Baylson said that the court cannot preclude the threat that at least some   will undergo future inspections under 2257 resembling those in the past and therefore the 2006-2007 inspections continue to serve as relevant evidence.

A telephonic conference between Baylson and the two parties will take place next Thursday.

View U.S. District Judge Michael Baylson's 2257 order