PHILADELPHIA, Pa. — Lawyers for the Free Speech Coalition (FSC) and the other plaintiffs in the years-long litigation challenging the constitutionality of 18 U.S.C. § 2257 (known more commonly in the adult industry as “2257”) today filed a response to this month’s brief by the U.S. Department of Justice (DOJ) before the U. S. Court of Appeals for the 3rd Circuit, which had challenged the government’s initial arguments.
The attorneys for the plaintiffs (called in this stage "appellees/cross-appellants"), J. Michael Murray and Lorraine R. Baumgardner, repeated their April assertion that 2257 — described by the FSC as “a federal record-keeping law aimed at preventing the use of minors in adult productions" — does not serve a "compelling governmental interest,” is not “narrowly tailored” to provide such a service and does not provide the “least restrictive” way to reach that outcome.
Murray and Baumgardner also mentioned the recent Supreme Court decision (Brunetti, aka FUCT), striking down a federal law provision banning the registration of "immoral" or "scandalous" trademarks, calling it an infringement of the First Amendment.
Last August, U.S. District Judge Michael Baylson in Philadelphia gave the FSC and co-plaintiffs a partial victory, finding that large parts of 2257 were unconstitutional on First Amendment grounds. The plaintiffs had also obtained an earlier victory on Fourth Amendment grounds from a 3rd U.S. Circuit ruling.
The Justice Department appealed Baylson’s final judgment and decree late last year. The DOJ filed its brief on March 27. On April 26, FSC attorney Murray filed a response alleging that the plaintiffs’ partial August victory was in fact incomplete (Judge Baylson had upheld two provisions), since given that 2257 “failed the narrow tailoring and least restrictive means components of strict scrutiny,” the lower court “erred in not striking down the Statutes in their entirety.”
The Justice Department filed its own reply to the April 26 response earlier this month. Today’s reply by attorneys for the FSC and other appellants is available in full via the PACER website (login necessary).
As the FSC has previously explained, the 2257 requirements (i.e., anyone who films sexual content must "maintain and keep detailed records and IDs of the persons depicted in the film, cross-referenced in files, with dates of production, nicknames and copies of the movies,” etc.) do not achieve their stated goal.
“This isn’t about keeping minors out of adult film,” the FSC website explains to newer producers. “The industry is already incredibly stringent about age-verification, as the production of child pornography is not only morally and ethically despicable, it also carries a mandatory minimum of fifteen years in prison. A record-keeping requirement means nothing to a child pornographer. But for legitimate producers, the burdensome and byzantine requirements create numerous ways for producers to be prosecuted and harassed by law enforcement, that have nothing to do with the age of performers.”
Oral argument before the Third Circuit is scheduled for September 10.
For more XBIZ coverage of 2257, click here.
