Justice Department Seeks Rehearing of 2257 Decision

Justice Department Seeks Rehearing of 2257 Decision

PHILADELPHIA — The Justice Department yesterday filed a brief with the 3rd U.S. Circuit Court of Appeals, seeking a rehearing over the recent appellate ruling involving 18 U.S.C. §§ 2257 and 2257A, the federal statutes that govern performer record-keeping for sexually explicit content.  

In June, in a big victory for the plaintiffs — adult entertainment trade group the Free Speech Coalition and various performers and industry stakeholders — the 3rd Circuit vacated and remanded a lower court’s July 2013 ruling that held that record-keeping for adult producers was constitutional.

The win for the plaintiffs, and consequently all adult entertainment producers, was hailed by many at the time as one of the greatest adult industry victories in decades.

The  3rd Circuit ruling, left intact, would sent the case back to U.S. District Judge Michael Baylson’s courtroom in Philadelphia for reconsideration.

That reconsideration would centrally focus on whether the statutes withstand “strict scrutiny,” which presumes a law to be invalid unless the government can prove the law's constitutionality and demonstrate a compelling governmental interest in keeping it.

Yesterday, the Justice Department filed a 21-page brief seeking a panel rehearing and rehearing “en banc,” or before the entire bench. Many of its points it made were a rehashing of the case.

The Justice Department said that its petition should be granted because the 3rd Circuit panel’s holding that the record-keeping statutes are subject to strict scrutiny conflicts with two other federal appeals courts and that is contrary to the U.S. Supreme Court’s decision in City of Renton v. Playtime Theatres Inc.

The U.S. Supreme Court held in Renton in 1986 that cities may impose regulations prohibiting adult theaters from operating within certain areas, finding that the regulation in question was a content-neutral time, place and manner restriction for purported “secondary effects.”

But the 3rd Circuit court in June focused on a new U.S. Supreme Court case to guide its decision — Reed v. Town of Gilbert.

“In light of Reed, we determine that the statutes are content based, and therefore require strict scrutiny review under the First Amendment,” the 3rd Circuit panel said in June.

In its petition yesterday, the Justice Department, however, said that nothing in the Supreme Court’s opinion in Reed indicates that it was intended to have “the sweeping effect given to it by the panel majority.”

“The court in Reed purported to apply longstanding precedents, and it left wholly untouched (and, indeed, unmentioned) the secondary-effects line of cases,” the Justice Department said in the petition. “Even if there is tension between Renton’s secondary-effects doctrine and the content-neutrality discussion in Reed, that tension provides no basis for concluding that the Reed court overruled Renton by implication or limited it to its facts. 

Renton’s secondary-effects rule more directly applies to 18 U.S.C. §§ 2257 and 2257A than Reed, and Renton requires the application of ‘intermediate scrutiny.’”

To pass the intermediate scrutiny, the record-keeping statutes must further an important government interest by means that are substantially related to that interest.

“The panel erred in holding otherwise, and the full court should correct that error,” the Justice Department said.

View Justice Department's petition for rehearing

Related:  

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

2025 XBIZ Amsterdam Speaker Lineup Announced

XBIZ is pleased to announce the release of the full speaker lineup for XBIZ Amsterdam 2025, the latest edition of Europe’s biggest adult industry conference, set to take place Sept. 2-5 at the Jakarta Hotel in Amsterdam.

Angie Faith's 'Blueprint' for Success

Angie Faith has two reasons to celebrate. First, the veterinarian just gave her Japanese Chin puppy, Cheeky, a clean bill of health after Cheeky unwisely ate a stray piece of Lego.

Cherie DeVille Stars in Latest From Brazzers

Multi-XMAs winner Cherie DeVille stars with 2024 XMAs Male Performer of the Year Zac Wild in the latest Brazzers scene, titled “Cock Support Line.”

Sara Jay, Dan Leal to Sponsor XBIZ Amsterdam Kick-Off Event

Sara Jay’s Wyde Syde Productions and Porno Dan Leal’s Market64 will co-sponsor the Bottoms Up Day Drinking kick-off event for XBIZ Amsterdam 2025 at Excalibur Café on Sept. 2, from 2-4 p.m. (CET).

Connie Perignon Fronts Latest From Brazzers VR

Connie Perignon stars in the latest release from Brazzers VR, titled "A Sugar Daddy’s Point of View."

Octokuro Leads Latest Release From Freeze

Octokuro stars with Sam Bourne in "A Dangerous Encounter" from Freeze.

Lauren Phillips Stars in Latest Episode of 'Mommy's Boy'

2024 XMAs MILF Performer of the Year Lauren Phillips stars with Lawson Jones in the latest episode of Adult Time series “Mommy’s Boy,” titled “He Doesn't Know Me...But You Do.”

Mag Numb Makes Her Debuts for Parasited, Vampired

Mag Numb has made her Parasited and Vampired debuts in the latest Roberto Di Suna-helmed releases from the respective studios.

Equentus Media Names Livie Blainn Content Curator, Bree Austin COO

Equentus Media has named Livie Blainn as its new curator for content and marketing, and Bree Austin as its COO.

MsSexySaigon Makes Studio Debut in Latest From MYLF

Creator MsSexySaigon has made her studio debut in the latest scene from MYLF.

Show More