2257 Suit Now Focusing on 1st Amendment Issues

PHILADELPHIA — A federal judge has scheduled deadlines for briefs to be filed in the Free Speech Coalition’s continuing lawsuit over the legality of federal performer record-keeping statutes for adult entertainment producers.

Last month, U.S. District Judge Michael Baylson ruled that elements of 18 U.S.C. §§2257 and 2257A were facially unconstitutional under the Fourth Amendment, which protects against unreasonable searches and seizures.

Now the pendulum swings over to First Amendment issues.

Last week, FSC attorneys J. Michael Murray and Lorraine Baumgardner filed a motion asking for an entry of judgment declaring that 2257 also violates free speech rights.

Justice Department attorneys, meanwhile, filed their own motion seeking an entry of judgment, concluding that 2257 and its implementing regulations aren’t facially overbroad.

In its motion, the FSC said that the government has failed to satisfy its burden of demonstrating that 2257 and its regulations survive strict scrutiny and they, therefore, are unconstitutional on their face and as applied under the First Amendment. Strict scrutiny presumes a law to be invalid unless the government can prove the law's constitutionality and demonstrate a compelling governmental interest in keeping it.

The FSC in their brief noted that 2257 doesn’t directly and materially advance a compelling interest in preventing children from appearing in sexually explicit expression; doesn’t narrowly tailored to achieve the government’s interest in preventing children from appearing in sexually explicit expression; and isn’t not the least restrictive means in achieving the government’s interest in preventing children from appearing in sexually explicit expression.

In addition, the FSC said the problem that 2257 was enacted to address — the use of underage performers in the production of adult films — does not exist and is unsupported by any evidence.

“[The federal record-keeping law and its] implementing regulations … are unconstitutionally overbroad,” the FSC wrote.

The FSC and Justice Department attorneys made a conference call last week with Baylson to knock out a briefing schedule for the coming months.

The FSC’s opening brief will be filed by Feb. 24, with the government’s response filed by March 27. A reply brief will be due from the FSC on April 17.

Oral arguments, Baylson stated, will be scheduled at a later date.