PHILADELPHIA — Justice Department attorneys, in a filing late yesterday, told a federal judge that injunctive relief should only apply to plaintiffs who signed on to challenge federal recordkeeping laws 18 U.S.C. §§ 2257 and 2257A.
Plaintiffs Free Speech Coalition, the American Society of Media Photographers and several individuals challenged the government over the recordkeeping statutes for adult producers. After numerous years litigated in U.S. District Judge Michael Baylson’s courtroom, as well as before the 3rd U.S. Circuit Court of Appeals, the case has matured closer to resolve.
Recently the court presented a draft judgment entry that included declaratory and injunctive relief in favor of the FSC on its as-applied challenges under the First Amendment, but it limited injunctive relief to individuals who were named in the complaint.
On Monday, the FSC issued a memorandum to Baylson, asking the court for a final judgment to declare the recordkeeping laws unconstitutional and to enjoin their enforcement.
But on Tuesday, Justice Department attorneys wrote that they sought to keep injunctive relief limited to the plaintiffs only and not the U.S. adult entertainment industry at large.
The government’s attorneys said that the plaintiffs request for broad injunctive relief to other members of the adult entertainment industry is inconsistent with U.S. Supreme Court and 3rd Circuit authority and should be rejected.
Justice Department attorneys said in one controlling case, the high court’s ruling in Gill v. Whitford, that it “was the scope of the plaintiff’s injury, not the scope of the alleged violation, that governed the permissible scope of the injunction.”
“In the First Amendment context as well, the Supreme Court has similarly recognized that we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants,” the government wrote. “Following such reasoning, the 4th U.S. Circuit of Appeals vacated an injunction that precluded an agency from enforcing, against any entity, a regulation found to have violated the First Amendment.
“The court explained that an injunction covering the plaintiff alone adequately protects it from the feared prosecution,” and that “[p]reventing the [agency] from enforcing [the regulation] against other parties in other circuits does not provide any additional relief to [the plaintiff].”
Justice Department counsel, meanwhile, said that they opposed Baylson’s suggestion that the parties consider alternatives such as an amended complaint or certification of a class action so that its holdings with respect to the individual plaintiffs could apply to other individual producers of pornography.
“Such an alternative would … prejudice defendant in this case and would set a precedent that would encourage blatant forum-shopping in future cases by suggesting that individuals could wait to join a case until after a similarly-situated party has obtained a favorable ruling,” government attorneys wrote.
Justice Department counsel also noted that it requested that the court ditch efforts to obtain a 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.
The government holds that the Administrative Procedure Act (5 U.S.C. §§ 701–06) does not permit it to submit a proposed regulation to the court.
“[I]f the [Justice] Department decides to promulgate new regulations, it will likely do so by following notice and comment rulemaking procedures set forth in the APA. “Because judicial review under the APA is limited to final agency action, it would be inappropriate for the court to review proposed regulations.”
