3rd Circuit Upholds 2257 Recordkeeping Law

Rhett Pardon

UPDATE: The Free Speech Coalition responds to the ruling here.

PHILADELPHIA — The 3rd U.S. Circuit Court of Appeals has upheld the core of 18 U.S.C. § 2257 requiring producers of pornography to keep records of the ages and identities of people appearing in explicit photos or videos.

A three-judge panel, asked to consider the constitutionality of the statutes' recordkeeping, labeling, and inspection requirements for adult entertainment companies, today affirmed a lower court’s denial of plaintiff Free Speech Coalition’s First Amendment claims, except with regard to one aspect — the inspection of records involving those taking place during normal business hours and at such places as specified in the statute.

The appeals court remanded the case back to the lower court to enter a judgment declaring that the warrantless searches during inspections violate the Fourth Amendment.  

But the Philadelphia-based 3rd Circuit ruled that the statutes, 18 U.S.C. §§ 2257 and 2257A, are, for the most part, "narrowly tailored" and, therefore, constitutional.

 “We will also affirm in part the district court’s judgment that the statutes and regulations do not violate the First Amendment,” Judge D. Brooks Smith wrote in the decision, joined by Judges Anthony Scirica and Marjorie Rendell. “In light of our conclusion that the government must obtain a warrant before conducting a search under the statutes, however, we will remand to the district court to consider whether 28 C.F.R. § 75.5(c)(1)’s additional requirement that producers make their records available for at least 20 hours per week also violates the First Amendment.”

The nature of the state interest underlying the statutes — protecting children from sexual exploitation by the adult entertainment filmmakers — is compelling, the panel said.   

"The financial benefits accruing to producers from using youthful models as well as the financial benefits those models themselves enjoy, together with the difficulty of differentiating youthful adults from minors, all combine to increase the risks of children being exploited,” the 3rdCircuit said in its ruling. “That the statutes represent an effort to stem the tide of child pornography only after direct prohibitions have been insufficiently effective supports the statutes’ facial validity."

The 3rd Circuit panel said that there always is the possibility that someone making explicit works solely for private use or someone producing images of individuals clearly not underage could successfully challenge how the laws apply to them.

"The invalid applications of the statutes that plaintiffs have demonstrated still pale in comparison with the statutes’ legitimate applications, which counsels against holding the statutes facially invalid," the court wrote in the 65-page opinion.

"We fully recognize that certain explicit, non-obscene materials have artistic, educational, or other social value. Our resolution of plaintiffs’ facial challenge is not a value judgment as to plaintiffs’ work. Indeed, the purely private nature of some of the expressive conduct to which the statutes apply requires additional sensitivity to the core First Amendment values implicated in this case."

Adult entertainment attorney Lawrence Walters of Walters Law Group said that, “In sum, section 2257’s requirements have been upheld, and producers need to keep records.” 

“But the government will likely need a warrant before conducting an inspection,” Walters told XBIZ. “The case goes on, at the trial court level, and some additional refinements may be added to the final ruling.

“Given the ruling on the facial validity of the statute, it is essential that producers shore up their 2257 compliance efforts as soon as possible,” he said.

Walters emphasized that the court today “seemingly imposed a warrant requirement for 2257 inspections.”

“That essentially prevents the government from conducting random inspections, and requires that probable cause exist before producers can be subject to a 2257 inspection,” he said.

“While the loss on the First Amendment challenge is disappointing, the new requirement of a warrant helps prevent arbitrary or discriminatory enforcement of the law. Producers of 2257-triggering content will still need to maintain records, and can still be inspected without notice, but it appears the government must have probable cause that a crime has been committed before an inspection can occur. 

“While the court rendered an ‘as applied’ ruling, and only rendered a decision affecting the plaintiffs to in the suit, the language in the opinion appears broad enough to impose a warrant requirement, as standard operating procedure. Even assuming the plaintiffs’ fell within a ‘closely regulated’ industry, the circuit court concluded that its decision to impose a warrant before conducting a search would be the same.

“That suggests the ruling will be broadly applicable to in other cases involving erotic content.  In addition, the court remanded the case for further consideration of the impact of the Fourth Amendment ruling on the other First Amendment claims raised by the Plaintiffs, along with an evaluation of the requirement that producers have a custodian standing by for inspections for a minimum of 20 hours per week.”

View 2257 ruling