FSC, Justice Department Can't Agree About Proposed 2257 Judgment

PHILADELPHIA — The Free Speech Coalition and the Justice Department cannot come to terms for a joint proposed final judgment over First Amendment issues in the legal battle involving federal recordkeeping laws 18 U.S.C. §§ 2257 and 2257A.

Instead, each party offered their own proposed final judgment entry to U.S. District Judge Michael Baylson, who has been hearing the long-running case.

Baylson last month had ordered both sides to formulate a judgment that conformed to decisions the court has already made. Today was the deadline for each to file.

FSC attorneys J. Michael Murray and Lorraine Baumgarder noted in the entertainment trade group’s brief that the U.S. Supreme Court’s recent decision, National Institute of Family and Life Advocates v. Beceria, provides further support for its argument that the labeling requirements are unconstitutional under the First Amendment.

In that case, decided on June 26, the high court held that notices required by California’s FACT Act, which mandated that crisis pregnancy centers provide certain disclosures about state services, violate the First Amendment by targeting speakers rather than speech.

Justice Department attorneys in their brief maintained the agency’s stance and asked the court to reject the FSC’s own proposed judgment.

The FSC and other plaintiffs sued the Justice Department over the label requirements in 2009, offering up First and Fourth Amendment challenges to the laws that have been described by the industry as burdensome.

Last year the FSC won its Fourth Amendment challenge over unreasonable searches and seizures at producers’ businesses at the 3rd U.S. Circuit Court of Appeals. The court invalidated a portion of § 2257.

The FSC later focused on a bid for permanent injunction enjoining the statutes’ enforcement because it is viewed by the trade group as overly broad and unconstitutional relative to the First Amendment.

Baylson said in May that if the parties could not agree on a proposed final decree, the court will make a final decision for them.