FSC Files Petition to Rehear 2257 Appeal

Rhett Pardon

WASHINGTON — The Free Speech Coalition has asked the 3rd U.S. Circuit Court of Appeals to rehear its challenge over the legality of 18 U.S.C. § 2257, holding that two very recent U.S. Supreme Court cases could have influence on its appeal.

In May, a three-judge 3rd Circuit panel left intact the core of the recordkeeping regulation’s tenets for producers of sexually explicit content with the exception of warrantless inspections of records.

The Philadelphia-based court agreed with a lower court and said that 2257 is, for the most part, "narrowly tailored" and, therefore, constitutional. Under 2257, producers must maintain records of the ages and identities of people appearing in explicit photos or videos.

On Thursday, attorneys J. Michael Murray and Lorraine Baumgardner, both representing the FSC, filed a petition for panel rehearing and for rehearing en banc, or before the entire bench rather than by panel.

“I express a belief, based on a reasoned and studied professional judgment, that the panel’s decision upholding 18 U.S.C. §§ 2257, 2257A, as content-neutral regulations of expression, conflicts with Reed vs. Town of Gilbert,” wrote Murray in his petition, referring to a case decided just 11 days ago by the U.S. Supreme Court.

The high court ruled in that the decision that the provisions of a municipality’s sign code that impose more stringent restrictions on signs directing the public to the meeting of a nonprofit group than on signs conveying other messages are content-based regulations of speech that cannot survive strict scrutiny.

“Its determination that the statutes are narrowly tailored and not substantially overbroad also conflicts with McCullen vs. Coakley, U.S. vs. Stevens, and Conchatta vs. Miller,” Murray said.

“The consideration of the full court is necessary to secure and maintain uniformity of its decisions,” he said. “Moreover, this appeal involves a question of exceptional importance: Under the First Amendment, can the government impose recordkeeping, labeling, and inspection requirements on producers and publishers of sexual imagery in the name of protecting children from sexual exploitation, when a substantial quantity of the expression burdened by those requirements depicts mature adults who could not be confused as minors and comprises private, personal images exchanged between adults?

“Finally, rehearing should be granted so the Supreme Court’s decision in City of Los Angeles v. Patel,” he said.

In that ruling, made only seven days ago, the justices ruled that a Los Angeles municipal code that requires hotel operators to record and keep specific information about their guests on the premises for a ninety-day period and to make those records available to "any officer of the Los Angeles Police Department for inspection" on demand, is facially unconstitutional because it fails to provide the operators with an opportunity for pre-compliance review.

The 3rd Circuit has not yet decided whether to grant the FSC’s petition.

View FSC petition