DOJ Brief Offers No New Evidence in 2257 Case, FSC Attorneys Say

DOJ Brief Offers No New Evidence in 2257 Case, FSC Attorneys Say

PHILADELPHIA — The Free Speech Coalition, in a brief filed Monday, reminded a federal judge that the adult recordkeeping statutes for adult producers are unconstitutionally overbroad and should be struck down.

In addition, the FSC said it objected to the recent submission of evidence by opposing counsel, the Justice Department, which offered three written declarations for the court to consider.

The long-running case, pitting the adult entertainment trade group against the federal regulator, focuses on recordkeeping laws 18 U.S.C. §§ 2257 and 2257A, which were created as laws to protect children from sexual exploitation.

The FSC and other plaintiffs sued the government, offering up First and Fourth Amendment challenges to the laws that have been described by producers as burdensome.

In January 2017, the FSC won its Fourth Amendment challenge over unreasonable searches and seizures at producers’ businesses. As the case unfolded, it continues its bid for permanent injunction enjoining the statutes’ enforcement because they are overly broad and unconstitutional in regards to the First Amendment.

The Justice Department, however, has maintained all along that because the federal government has a compelling interest in protecting minors from sexual exploitation, 2257 statutes do not impose an unfair or unreasonable burden on companies that create or distribute sexually explicit material and therefore, are not unconstitutional.

The recent written declarations submitted to the court by the Justice Department come several months after U.S. District Judge Michael Baylson heard oral arguments in the case.  

The declarations delivered to Baylson came from a Justice Department paralegal who lists record-management software for 2257 recordkeeping, a self-described FBI liaison to the National Center for Missing and Exploited Children (NCMEC) who stated that child porn can be found on the web and that it has not been eliminated, and from an exec of the NCMEC who provides information on the group’s CyberTipline, a clearinghouse for tips about child exploitation.

In a reply brief filed Monday, the FSC, led by attorneys J. Michael Murray and Lorraine R. Baumgardner, said the declarations do not cure the deficiencies in previous testimony recognized by the court.

“They offer no evidence that producers of adult materials have used minors in the production of their material, nor do they provide any evidence demonstrating that the statutes are the least restrictive means of preventing the appearance of minors in sexually explicit material,” the FSC’s attorneys wrote.

“Instead, the government has used the submission of these spare declarations as a platform to file an additional 54 pages of argument in the form of a supplemental brief and proposed findings of fact. [The] argument — new or re-calibrated — cannot make up for a lack of evidence.”

The FSC contended in the brief that the government has failed to satisfy its burden of an actual problem the statutes were enacted to address, that the government has failed to satisfy the burden of demonstrating the statutes employ the least restrictive means among alternatives, and that the court must evaluate the statutes’ overbreadth under strict scrutiny.

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.

In its reply brief, the FSC urged the court to grant its motion for entry of judgment in its favor on the First Amendment issues.

“However, if this court determines the declarations offer relevant evidence under strict scrutiny, plaintiffs object to its introduction by written declaration as inadmissible hearsay under the rules of evidence,” FSC attorneys wrote.

“Nothing in the declarations changes that analysis or outcome,” FSC attorneys wrote.

The FSC said in the brief that the declarations provided as witness testimonies should be taken in the open court and subject to cross examinations — but first after the FSC is given the opportunity to depose the declarants.

View FSC's reply brief