PHILADELPHIA — The 3rd U.S. Circuit Court of Appeals on Thursday denied the Justice Department’s petition for a rehearing over a three-judge panel’s decision over 18 U.S.C. §§2257 and 2257A, the federal statutes that govern performer record-keeping for sexually explicit content.
“The petition for rehearing filed by appellee in the above-entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court en banc, is denied,” a panel for the 3rd Circuit decided today.
One jurist, Judge Thomas Vanaskie, was the only holdout of the 13 judges deciding the petition. Vanaskie noted he would grant rehearing by the court en banc.
The 3rd Circuit ruling sends the case back to U.S. District Judge Michael Baylson’s courtroom in Philadelphia for reconsideration. Or, for the matter, an appeal to the U.S. Supreme Court by the Justice Department.
Adult entertainment trade group the Free Speech Coalition and various performers and industry stakeholders sued the government over the laws, holding that the inspection provisions of the statutes are facially unconstitutional.
The initial win for the plaintiffs in June, and consequently all adult entertainment producers, was hailed as one of the greatest adult industry victories in decades.
In June, the 3rd Circuit vacated and remanded a lower court’s July 2013 ruling that held that performer record-keeping for adult entertainment producers are constitutional.
The 3rd Circuit, in the judgment, held that the inspection provisions of the statutes are facially unconstitutional under the 4th Amendment.
With the ruling, most of 2257 became unenforceable due to its violation of the 4th Amendment on unreasonable seizures. The case now would go back to the trial court over the case’s 1st Amendment claims.
On Thursday, FSC attorney Michael J. Murray, who litigated the case, called the 3rd Circuit’s decision “an exciting victory for the adult industry.”
“But it is not over yet,” Murray told XBIZ. “I think there a good chance that they will take the case to the U.S. Supreme Court. With the Justice Department asking for a review en banc, it sends a signal that they may file a motion to stay its decision. But they would have seven days to do it.”
Murray noted that the Justice Department has up to 90 days to file a petition for writ of certiorari to ask the high court to review the decision.
Industry attorney Lawrence Walters told XBIZ that FSC attorney “Mike Murray’s impressive victory remains in place."
"Unless the government seeks review by the U.S. Supreme Court, the case will be sent back to the trial court for a full determination of the 1st Amendment challenges to the statute, Walters said. "In light of the 3rd Circuit’s binding decision on the 1st Amendment issues, hopes are high that the district court judge will strike down the remainder of the statute and deliver a full victory to the plaintiffs.”
Another industry attorney, Allan B. Gelbard, called the decision by the 3rd Circuit "excellent news."
"Mike Murray is to be commended for his years of effort on this case," Gelbard said.
