Adult Industry Attorneys Weigh In on 2257 Ruling

PHILADELPHIA — Today's 2257 ruling is a disappointment for many and a stunner for some, but the case over the legality of federal-recordkeeping for adult producers may not yet be over.

The Free Speech Coalition's board chair, industry attorney Jeffrey Douglas, said that many of U.S. District Judge Michael Baylson's findings could be basis for reversal "and the ultimate dismantling of 18 U.S.C. § 2257."

XBIZ queried a number of adult industry attorneys today to get their takes on today's landmark ruling.

Adult industry attorney Lawrence Walters, of Florida-based Walters Law Group, told XBIZ that “the decision is obviously disappointing for the FSC, and the industry in general," particularly after a larger victory after the 3rd U.S. Circuit Court of Appeals remanded the case back to the trial court to consider some of the FSC’s constitutional claims. 

"The FSC and its counsel have fought valiantly against difficult odds, but it appears that the vast majority of Section 2257 has been upheld, again, with limited exceptions," Walters said. "The First Amendment claims were rejected largely due to a lack of evidence that non-commercial sex pics were being targeted for inspection (or even being produced). 

"This case represents a growing trend of decisions which require the parties to introduce tangible evidence of the overbreadth of a challenged statute, as opposed to relying solely on hypothetical applications of the law in unconstitutional ways," he said. 

"Disturbingly, the decision recognizes that Section 2257 does apply even to non-commercial erotica, such as private pictures taken by spouses during intimate moments. The remedy for such broad application of the statute, according to the court, would be for the affected parties to file suit, themselves, and challenge the statue ‘as applied.’ 

"The result in this case was obviously driven by the judge’s disdain for child pornography, which he called ‘revolting’ and 'depraved.'  The pervasive use of young-looking models in the adult industry seemed to be of some concern to the judge, and helped him justify the need for these restrictive age-verification laws.

Walters said that the one bright spot in the decision is the determination that unannounced 2257 inspections of residential locations violates the Fourth Amendment’s right to privacy and protection against unreasonable search.  

"The court recognized that FBI agents should not be able to burst into your house, with all your private accoutrements lying around for the government to see," Walters said. "Under the court’s ruling, FBI agents will be required to provide prior notification to producers who keep their 2257 records at home, and provide enough time for the custodian to return home to appear at the inspection. 

"While this is at least a minor victory, the court could not even bring itself to issue an injunction against this portion of the law, but instead relied on DOJ officials to either amend the applicable regulations, or just follow the dictates of the court’s opinion," Walters said.

"Undoubtedly, the decision will be appealed – at least by the FSC, but possibly by both parties.  This has always been an uphill battle for the industry, and today’s decision reinforces the need to comply with 2257 requirements while the law is being challenged. 

"The DOJ could resume inspections at any time, although such inspections are unlikely given funding issues and the continued litigation.  But the writing on the wall is becoming easier to read with each decision upholding some or all of this byzantine federal statute.”

Another adult industry attorney, Allan Gelbard, a solo practitioner in California, called the decision a "horrible opinion from a clearly unfriendly judge" and said an appeal is likely in the case.

"Back to the 3rd Circuit," he told XBIZ. "I seem to recall that the panel that reversed him last time will get any appeals, so I'm hopeful they will reverse him again.

"The most troubling thing to me (if that's even possible) is that he declared adult production as regulated industry authorizing administrative searches. That is very dangerous." 

Adult industry attorney Joe Obenberger of Illinois-based J.D. Obenberger and Associates said that Baylson, who put more weight to the testimony of the government's witnesses as compared to the FSC's witness, was "disrespectful" to the 3rd Circuit, which remanded the case back to the district court.

The 3rd Circuit in its April 2012 ruling said that as  "a matter of law the administrative-search exception to the Fourth Amendment’s warrant requirement does not justify the warrantless inspections authorized under sections 2257 and 2257A."

Obenberger said that Baylson took the law into his own hands when he ruled 2257 inspections constitutional.

"He's playing chess with the 3rd Circuit," Obenberger told XBIZ. "I think they are going to let him really have it."

Jeffrey Douglas, board chair of the FSC, earlier said that the adult industry trade group is reviewing today's 74-page opinion.

But he also said the organization was not surprised by Baylson's refusal to grant more extensive relief, especially in the First Amendment arena. That, he said, could basis for an appeal.

"Even on the First Amendment issues, the trial court record gives us great optimism for appeal by the 3rd U.S. Circuit of Appeals," Douglas said. "Many of Judge Baylson’s findings in both First Amendment and Fourth Amendment areas provide a strong basis for reversal and the ultimate dismantling of 18 U.S.C. § 2257."