Post-Trial Reply Briefs Filed in 2257 Case

Rhett Pardon

PHILADELPHIA — The Free Speech Coalition and Justice Department filed post-trial reply briefs on Friday and Monday, respectively, in the case over federal record-keeping act 18 U.S.C. §§ 2257 and 2257A.

The replies, in response to last week's post-trial filings, aimed to rebut each other's ground in the long-running battle waged by the adult entertainment industry to overturn a law aimed directly at producers who, on a wholesale level, allege an unfair and unnecessary burden on companies or individuals presenting any sort of erotic depictions.  

The FSC, along with 15 other plaintiffs, said that the government spent  a good portion of its post-trial brief trying to persuade the court not to render a decision on the merits of Fourth Amendment claims, notwithstanding a federal appeals court's remand for the development of an evidentiary record for that purpose.

"The remand, however, anticipated a determination on the merits, so plaintiffs will begin there," FSC attorneys wrote.

The FSC made five points in their reply to the Justice Department, including that the U.S. conducted unconstitutional warrantless searches, the searches were not consensual, the statutes authorizing warrantless searches were unconstitutional on their face, plaintiffs have standing to challenge the inspection scheme under the Fourth Amendment and that the inspection regime cannot be upheld based on the totality of the circumstances.

As for the Fourth Amendment issue, the FSC said the gist of the government's argument on standing is that the FBI stopped conducting inspections  when a 6th U.S. Circuit Court of Appeals decision found the statute to be unconstitutional in 2007; the program was not resumed after that decision was vacated and reversed; the inspection program is not currently being funded by Congress; and there are no concrete plans by the FBI to begin it again.

"On these facts, the government argues, that when the inspection program resumes, it may take another shape. Thus, it laments, there is no basis to think that future inspections will any way resemble the prior 29 [2257 searches] and therefore, any decision regarding the regulatory inspection scheme is simply advisory," FSC attorneys said.

"There are some significant pieces of the picture missing from the government’s analysis, however. In its entire discussion of the inspections that have taken place and inspections yet to be, the government does not once mention [inspection of records law] 28 C.F.R. § 75.5. Yet that is the regulation under which the inspection program was created, pursuant to which the 29 inspections were carried out, and with which any future inspections must conform."

As a result, the FSC argues, there is no uncertainty about the parameters of future inspections compared to the previous 29.

"They must be carried out in consonance with 28 C.F.R. § 75.5,which sets forth the protocol for those inspections. Importantly, we know that government agents are authorized to enter producers’ premises without delay, without a warrantor probable cause, and without advance notice."

The Justice Department focused its rebuttal on how narrowly tailored 2257 is, as applied to the adult entertainment industry, and that the FSC hasn't proven that the law is substantially overbroad.

"[I]t is reasonable to require ID checks and records, and a means of  finding the records for a depiction no matter where the depiction ends up," the Justice Department said. "After all, child pornography causes harm both at the point that it is made (highlighting the importance of prophylactic measures rather than relying solely on after-the-fact criminal laws) and by remaining as a permanent record of that act.

"And once an image is created, it can be disseminated through different channels, copied, and re-sent many times, making its origin difficult to trace. Plaintiffs identify no reason for exempting them from these prophylactic measures, none of which prohibit their expression," the Justice Department said. "Rather, all plaintiffs in this case fall squarely within the legitimate scope of 2257 because they use youthful looking individuals in their work, and have no intention to stop doing so in the future. Nor can plaintiffs’ flawed evidence establish that, relative to the vast universe of commercial, publicly available pornography, any invalid  applications are substantial."

U.S. District Judge Michael Baylson said he would rule on the case before the end of the month.