LOS ANGELES — A three judge panel from the federal Third Circuit Court of Appeals sided with the adult industry this week, declaring that the 2257 record-keeping regulations, Reagan-era protocols that were expanded by the Bush Administration to harass legitimate adult producers, are a likely government restraint on free speech, and as such require the application of “strict scrutiny” — an incredibly high bar for the government to overcome.
“The Third Circuit took into consideration recent First and Fourth Amendment cases from the U.S. Supreme Court and has now directed a lower court on how to apply them with respect to our long-running challenge to 2257,” said Reed Lee, an attorney and Free Speech Coalition board member. “It is now very likely that FSC’s First Amendment claims will succeed at last.”
Eric Paul Leue, Executive Director of the Free Speech Coalition, said the ruling was a huge victory for the Coalition’s members, connecting it to February’s defeat of Cal/OSHA’s newly proposed, and highly restrictive, condom-and-goggle regulations.
“This is a huge victory for free speech, and our second major victory this year. This year marks the twenty-fifth anniversary of the founding of the Free Speech Coalition, and as then, we face major battles on multiple fronts. But our strength and vigor are still unparallelled, and the FSC will continue to fight for the rights, well-being and growth of the entire adult industry. When we stand united, we stand strong.”
Jeffrey Douglas, FSC Board Chair, and Chairman Emeritus of the First Amendment Lawyers Association, said the regulations have harmed adult producers and performers.
“The 2257 regulations have cost our industry millions of dollars in unjustified, pointless paperwork, endangering performers through unnecessary distribution of personal identification documents, all for no good reason. FSC has been fighting against this dreadful regulatory scheme for over twenty years. We are extremely grateful to our attorneys, Michael Murray and Lorraine Baumgardner for their extraordinary efforts and financial sacrifice for principle.”
In a statement earlier this year, the Free Speech Coalition explained why it was so intent on fighting the regulations:
“This isn’t about keeping minors out of adult film. 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.
“With 2257, if a form isn’t complete, or you’ve misfiled, or you aren’t available when an inspector arrives, you can be prosecuted, and the stakes are incredibly high: ANY violation can result in a felony conviction with a prison term of up to five years.
“What’s more, 2257 allows the FBI the ability to arrive at your place of business without a warrant and demand access to your records at almost any time. The producer has no choice but to let the agents into their studio, office, or home, and to allow them to sift through the personal information contained in the records, for hours. In one case, the FBI visited a producer over two dozen times.”
Even before yesterday’s decision, the Third Circuit panel had sharply limited the statutory inspection regime. In light of a new Supreme Court decision, yesterday’s panel decision went even further in restricting those inspections. And as for the statute as a whole, yesterday’s decision backs Section 2257 into the tightest corner known to American constitutional law.
Until any final ruling on the constitutionality of 2257, producers should continue to comply with the regulations. Anyone with questions about the regulations or compliance should contact Free Speech Coalition directly at firstname.lastname@example.org.
“We’re tremendously encouraged by the success of the appeal,” said Leue. “We’ll be following up with members on how this benefits them directly.”