U.S. Has 'Compelling Interest' in Regulating Adult, Justice Dept. Says

U.S. Has 'Compelling Interest' in Regulating Adult, Justice Dept. Says

PHILADELPHIA — The Justice Department, in a brief submitted to a federal judge in the long-running civil lawsuit over the legality of 18 U.S.C. §§ 2257 and 2257A, said that the government continues to have a “compelling interest” in regulating adult filmmaking with recordkeeping requirements.

The Justice Department’s 46-page brief, in response to papers filed in February by the Free Speech Coalition, explained that the government continues to have a compelling interest in protecting children from sexual exploitation by pornographers and that 2257 satisfies strict scrutiny’s narrow tailoring requirement. (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.)

“No plaintiff should be held exempt from the statutes’ age verification and recordkeeping requirements,” the Justice Department wrote in the brief filed Friday. “The fact that the statutes’ requirements are not that burdensome to begin with, and do not prohibit any speech, also makes it difficult to conceive of any effective scheme that would be less restrictive, as to plaintiffs.

“This common sense, minimally burdensome scheme is designed so that not only do primary producers avoid relying on their inevitably subjective assessments of performers’ ages when creating sexually-explicit content that would fit within the statutory definition of child pornography if minors were used, but the resulting verified films and photographs can be traced back to their source, allowing law enforcement, who face the same problems assessing or proving an individual’s age, to distinguish between depictions of young-looking, but adult, performers and images that evidence the sexual exploitation of children.”

Justice Department counsel discounted suggestions by the FSC and other plaintiffs in their suit to topple the adult producer recordkeeping requirements that the government simply eliminate the statutes altogether and instead rely on direct child pornography prosecutions.

Government attorneys also chewed up alternative proposals that would make secondary producers, such as online distributors that did not produce the film, exempt from 2257 compliance, or offer age cut off compliance when performers are 30 years or older.

In another strategy, the Justice Department noted in its brief that two of the plaintiffs — the FSC and the America Society of Media Photographers — lack standing to assert claims on behalf of their members because neither “prevent those who upload such material from becoming members, nor do they place any requirements on their members, conduct inspections, or otherwise monitor their conduct.”

“Plaintiffs’ proposal that members of the adult industry should be trusted to check identification on their own, in lieu of statutory requirements, relies on purported ‘industry standards’ without any genuine notion of a uniform ‘industry,’ much less an established set of standards that every industry member follows,” the Justice Department wrote.

Government attorneys also wrote in a footnote that other plaintiffs in the case lack standing. One of the plaintiffs, Tom Hymes, is apparently no longer in the adult business, the Justice Department said, and no longer can seek relief.

Justice Department attorneys said that Hymes has not posted on his DailyBabylon.com site since May 4, 2014. Instead, they said he is currently engaged as editor-in-chief of MG Magazine, a periodical "for the cannabis professional.”

The FSC’s opening brief in February sought a motion for entry of judgment declaring 18 U.S.C. §§ 2257 and 2257A and their implementing regulations unconstitutional under the First Amendment.

The FSC, coming off a win in January relative to its Fourth Amendment challenge that protected against unreasonable searches and seizures, has asked a federal judge to issue a permanent injunction enjoining the statutes’ enforcement.

FSC attorneys J. Michael Murray and Lorraine Baumgardner, in their brief to the court, said that the regs should be found unconstitutional because they are overbroad and that the statutes don’t survive strict scrutiny.

The FSC’s attorneys emphasized that the government has failed to prove that adult filmmakers ever used minors in their production since was adopted in 1988 and later amended by Congress to cure defects.

View brief