2257 Judge Delivers Big Win in Final Judgment, Decree

PHILADELPHIA — U.S. District Judge Michael Baylson today issued his final judgment and decree over the Free Speech Coalition’s First Amendment challenges over federal recordkeeping regulations for adult producers, 18 U.S.C. §§ 2257 and 2257A.

The ruling looked at “facial overbreath” challenges, which check to see if a law is overly broad, as well as “as-applied” claims made in the case over the statutes and its implementing regulations.

Baylson entered favorable judgment over the facial overbreath claims to the Justice Department.

However, with the FSC’s as-applied claims, the court said that the statutes and regulations should not apply to secondary producers, because they are unconstitutional.

As a result, Baylson permanently enjoined the Justice Department from enforcing the statutes as applied to secondary producers.

Under the ruling, primary producers can still be held liable under 2257 if they fail to check performers' identification documents and fail to verify their ages.

But Baylson also wrote that certain record-keeping requirements, labeling requirements and penalties under §§ 2257 and 2257A also were found to be unconstitutional.

Today’s final judgment and decree was a major win for the Free Speech Coalition, which along with other plaintiffs, waged and won First and Fourth Amendment claims over the statutes and accompanying regulations.

Baylson, in conclusion, said that there were a number of independent reasons, the court decided to grant the form of relief as requested by the plaintiffs. 

"In the first place, this is not a single plaintiff case. In some of the cases the defendant relies on, there have been only one or a few plaintiffs, and the facts alleged are common to all plaintiffs," Baylson wrote. "Here, there are numerous plaintiffs, representing many different aspects of the adult pornography industry. 

"The plaintiffs could have, and perhaps should have, brought the case as a class action, but the absence of a class does not, as a matter of law, limit the court’s ability in issuing a final decree that is fair to the parties and represents the legal reasoning as set forth by this court in several existing opinions, and in several opinions by the 3rd U.S. Circuit Court of Appeals," he wrote.

"This entire litigation was supported by many different plaintiffs involved in basically all aspects of the adult pornography industry. The plaintiffs include producers, performers, artists, promotors – and the trial testimony disclosed their activities in significant detail. 

"Thus, the court’s decision, holding at least some aspects of the statutes and regulations, invalid under the First Amendment, considered, in practical effect, a trial record concerning all aspects of the adult pornography industry.  Indeed, in the recent recorded telephone conference with counsel, government counsel could not detail any aspect of the adult pornography industry that would be unaffected by this court’s ruling, and still be subject to valid and constitutional enforcement of all aspects of the statutes in the future. 

"In addition, the 3rd Circuit has already struck down one aspect of the statute as unconstitutional under the Fourth Amendment, and although it did not enter a final judgment, the clear import of the 3rd Circuit’s ruling was that the government could not enforce the search-and-seizure provisions of the statute against anyone, not just the individual plaintiffs.  

"This case has been pending for almost nine years, with several 3rd Circuit decisions. Several aspects of the statute are still binding on the adult pornography industry, as reflected in the ... judgment, where the court declined to award relief.

"This court concludes, in its discretion, that there is no longer a strict dividing line between the relief that would be proper when a statute is facially unconstitutional, as opposed to a statute being declared unconstitutional as applied.”  

The Justice Department is expected to appeal today’s decision.

“Each party is to bear its own costs,” Baylson ordered.

The FSC is expected to issue a statement about the judgment and decree on Tuesday.