FSC Files Reply Brief in Longstanding 2257 Case

FSC Files Reply Brief in Longstanding 2257 Case

PHILADELPHIA — The Free Speech Coalition re-emphasized in a reply brief today that the federal government has failed to establish the existence of a problem the 2257 statutes were purportedly enacted to address and that they are unconstitutionally overbroad.

The FSC’s brief was filed by attorneys J. Michael Murray and Lorraine R. Baumgardner in response to arguments made by the Justice Department in mid May.

The Justice Department’s brief last month said that the government continues to have a “compelling interest” in protecting children from sexual exploitation by pornographers and that 18 U.S.C. §§ 2257 and 2257A satisfy 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.)

But the FSC, in its brief filed today, elaborated that the statutes don’t survive strict scrutiny.

“It is the rare case in which the government can clear strict scrutiny’s formidable hurdles,” FSC attorneys wrote. “This is not that rare case.”

FSC counsel went on to emphasize that the statutes are not narrowly tailored and that the government must show that the statutes target and eliminate no more than the exact source of the “evil” they seek to remedy. 

Quoting a U.S. Supreme Court ruling, the FSC attorneys said: “Narrow tailoring under strict scrutiny is to be measured by ‘the standards of Versace,’ not  those of ‘Omar the tentmaker.’”

“[T]o survive strict scrutiny, the government must prove that a plausible, less restrictive alternative to the challenged regulation is not effective,” FSC counsel wrote. “Whether the burdens imposed by a content-based regulation on speech are incremental or acute does not alter what the government must show. And it has not demonstrated that a law that limits its requirements to expression depicting people who could reasonably be confused as minors would be less effective in achieving its statutory objective.”

Counsel for the FSC, among numerous points made, said that the government has failed to produce evidence establishing criminal laws prohibiting and punishing child pornography are not effective alternatives to the 2257 statutes.

The FSC said that the Justice Department also has not shown evidence establishing a recordkeeping law limited to primary producers of sexually explicit expression is not an effective alternative to the statutes.

"The government offers no evidence demonstrating that a law limiting the obligation to keep records of performers’ ages on the people who create sexually explicit expression in the first instance would not be effective in preventing the use of minors in producing that expression. It offers argument and conjecture instead,” FSC counsel said.

“The government argues that imposing requirements on secondary producers adds to the effectiveness of the statutory scheme because it requires secondary producers to verify that the material is not child pornography. But again, strict scrutiny is not satisfied by showing that the challenged regulation has some additional ability to achieve the government’s objectives.”

The 29-page brief also asked for the court to also consider the legitimate standing of the plaintiffs in the case — the FSC and American Society of Media Photographers. The government had argued that the “nebulous nature of the adult entertainment industry of adult film industry” weighs against associational standing as plaintiffs in the longstanding case.  

“Strict scrutiny’s narrow–tailoring and least restrictive means requirements do not evaluate individualized applications of presumptively invalid content–based regulations,” FSC counsel said. “It is enough to show that the statutes apply to plaintiffs’ members, and they must comply with them. The constitutionality of the statutes here does not depend on ‘the degree to which’ each member’s ‘speech is unnecessarily burdened.’ Therefore, plaintiffs FSC and American Society of Media Photographers have standing to assert a challenge to the statutes under strict scrutiny on behalf of their memberships.”

FSC, in its conclusion to the brief filed today, asked for the court to enter judgment declaring the 2257 statutes and their implementing regulations unconstitutional and permanently enjoining their enforcement.

View FSC's brief filed today

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

Autumn Rain Fronts Latest Release From Evil Angel

Autumn Rain stars alongside Christian Wilde in the latest Evil Angel scene.

Taylor Vixxen Stars in New Elegant Angel Release

Taylor Vixxen stars with Brad Newman in a new scene from Elegant Angel, titled “Wet and MILFy.”

Octavia Red Fronts Latest From Blacked Raw

Octavia Red stars with Vixen Media Group exclusive Jason Luv in the latest release from studio imprint Blacked Raw.

XBIZ 2026 Conference to Debut All-New Company Lounges, Community Track

The event website for XBIZ 2026 is now live, unveiling details for North America’s largest adult industry conference, including two all-new show features: Company Lounges and a Community Track.

Maria May Makes Her WIFEY Debut

Creator Maria May stars with her husband Jeff, Hollywood Cash, and Jamie Knoxx in the latest release from Vixen Media Group studio imprint WIFEY.

Alexis James Stars in Latest BAM Visions Scene

Alexis James stars alongside multi-XMAs winner Mick Blue in a new scene co-directed by Blue and Maestro Claudio, aka BAM Visions, from Evil Angel.

Charlotte Sins Performs Her 1st Gangbang for Adult Time

Charlotte Sins performs her first gangbang in the latest release from Adult Time.

Cutting Edge Testing Joins PASS as New Partner

Performer Availability Screening Services (PASS) has added Cutting Edge Testing (CET) as a new testing partner.

Andylynn Payne, Emma Rosie Topline Joey Silvera's 'Trans-Active 32'

Andylynn Payne and Emma Rosie headline director Joey Silvera’s “Trans-Active 32” from Evil Angel.

Mymember.site Integrates VR Functionality

Mymember.site has added virtual reality playback capability to its website management platform.

Show More