U.S. Judge Tells Counsel He'll Deny Motions for Summary Judgment in 2257 Case

Rhett Pardon

PHILADELPHIA — U.S. District Judge Michael Baylson won't be deciding on any pretrial resolution in the Free Speech Coalition's lawsuit against the federal recordkeeping law for adult producers, according to J. Michael Murray, the lead attorney for the plaintiffs.

Murray told XBIZ on Friday that his office received a letter from Baylson stating he would deny  motions for summary judgment that the FSC and the Justice Department had filed in the case last week.

"The case will now proceed to trial beginning June 3," Murray said. "We look forward to presenting our case in support of our contentions that 18 U.S.C. § 2257 and 2257A and their implementing regulations are unconstitutional under the First and Fourth Amendments."

Murray said that Baylson indicated he would issue a memorandum next week explaining his reasoning.

Industry attorney Reed Lee, an FSC board member, told XBIZ that "it appears that the reason for the letter was so that counsel on both sides could stop working on their summary judgment oppositions and start trial preparations."

The FSC last week asked the federal court in Philadelphia to dump the federal record-keeping law for adult producers. Also last week, the Justice Department filed its own memorandum in support of its own motion to dismiss the case.

But it was expected that Baylson wouldn't rule on the motions to dismiss because the federal jurist said earlier that year that  because the case is on remand from the 3rd U.S. Circuit Court of Appeals for determination of certain facts, he's more inclined for a trial rather than deciding summary judgment.

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.

The regulations spell out requirements for the maintenance, categorization, location and inspection of records, as well as legal grounds for exemption of these requirements. They require that records be maintained for five years after the dissolution of a business that had been required to maintain them.

In briefs filed last week, information relative to the 29 inspections conducted between July 24, 2006, and Sept. 19, 2007, without a search warrant under 2257 were revealed publicly for the first time.

According to FBI records, companies inspected during that period included Evasive Angels, Darkside (inspected twice), Silver Star, All Good, Robert Hill (inspected twice), Diabolic, Tennervision, Private Media Group, K-Beech, Wicked Pictures, Dead Men, Angry Young Men, Moonlight, Shanes World, Don Goo, JT Video, Bacchus, Cinema Play, Gentlemens, Temptations, Agency, Shooting Star, Real Wild Girls, Alexis Lords, Candid Cams, Ghost Pro and Pony Boy.

FBI agents entered the places of businesses to perform inspections of 2257 records — six were private residences — and inspected records for upwards to six hours,  according to Justice Department testimony.

"[The government] constituted a common law trespass as well as a violation of the producer’s reasonable expectation of privacy in his or her home and private business areas and records to which the general public is not granted access," FSC attorneys said in the motion last week. "And in each instance, the searches were conducted without probable cause and without a warrant.

"Moreover, the agents’ examination and copying of the producers’ records and taking photos while on those premises constituted a search and seizure under the Fourth Amendment."