PHILADELPHIA — The Free Speech Coalition late yesterday issued a memorandum to a federal judge hearing ongoing proceedings over 18 U.S.C. §§ 2257 and 2257A, asking the court for a final judgment to declare the federal recordkeeping laws unconstitutional and to enjoin their enforcement.
The long-running case over the legality of the recordkeeping law for adult producers hit a fork in the road several months ago after U.S. District Judge Michael Baylson ordered the adult entertainment trade group to work with the Justice Department to attempt to resolve First Amendment issues and formulate a judgment that conformed to decisions the court has already made.
The court presented a draft judgment entry that included declaratory and injunctive relief in favor of the FSC on their as-applied challenges under the First Amendment, but it limited injunctive relief to individuals who were named in the complaint.
However, the FSC contends that under "strict scrutiny" there is little, if any, difference between an as-applied and facial challenge and that there are precedents that require a statute to be unenforceable in totality. (Strict scrutiny is a legal standard of review to determine which is weightier: a constitutional right or principle or the government's interest against observance of the principle.)
“Because this court found that the laws were unconstitutional under the First Amendment as applied, the government argues that declaratory and injunctive relief must consequently be limited to the individual plaintiffs before the court,” FSC attorneys J. Michael Murray and Lorraine Baumgarder noted in the memorandum.
FSC counsel also said that “confusion exists about the differences (or lack thereof) between facial, as-applied, and overbreadth challenges in varying contexts under the First Amendment.”
“Under strict scrutiny, there is little, if any, difference between an as-applied and facial challenge …. In case after case, when the court determined a content-based regulation of speech could not survive strict scrutiny, it struck it down in its entirety; it did not limit relief to the individual plaintiffs who challenged it,” FSC counsel said.
FSC attorneys also pointed out that they appreciated Baylson’s efforts in proposing alternative solutions, such as adding language indicating plaintiffs are suing on behalf of themselves and “all others similarly situated” but that, absent the government’s agreement to not take action against individual producers, the proposals wouldn’t be workable.
Without the Justice Department’s agreement, “entry of final judgment would be unduly delayed on collateral procedural issues in the face of the government’s likely opposition that would require briefing and resolution by the court,” FSC counsel said.
In addition, the adult entertainment trade group said that discussions between the parties on submitting a new proposed regulation for labeling material subject to the statutes should be delayed.
The FSC has proposed an outline of a new simple, straightforward labeling regulation requiring primary producers of visual depictions of actual and simulated sexually explicit conduct to affix a label to such visual depictions stating that all persons appearing in those depictions are 18 years of age or older.
“But in light of the government’s position that the Administrative Procedure Act (5 U.S.C. §§ 701–06) does not permit it to submit a proposed regulation to the court, plaintiffs contend the best option is to defer that issue until after any appeals are concluded,” the FSC counsel wrote.