This morning, the 3rd Circuit Court of Appeal issued a mixed decision regarding the 18 US Code § 2257 record-keeping regulations, but one that contains some good news for the adult industry. While the Circuit disagreed with claims that the 2257 record-keeping regulations violated the First Amendment, the court did agree that requiring adult producers make 2257 records available without a warrant, accessible by law enforcement for any reason, violated a producer’s Fourth Amendment protections against unreasonable search and seizure. This means that while the regulations stand for now, they are largely unenforceable as written.
“The Third Circuit’s decision striking down the recordkeeping inspection regime as unconstitutional under the Fourth Amendment deals a substantial blow to the 2257 scheme,” said attorney J. Michael Murray, who argued the case on behalf of FSC and other plaintiffs. “Under today’s ruling, the Government can no longer appear at the doors of Free Speech Coalition’s members without a search warrant, and demand entry to inspect their 2257 records in derogation of the Fourth Amendment.”
Diane Duke, President and CEO of the Free Speech Coalition, was enthusiastic about the ruling, and possible future decisions.
“This decision was a hard-fought victory for adult industry. The Third Circuit’s decision struck down the record-keeping inspection as unconstitutional under the Fourth Amendment. The decision prohibits the routine, warrantless inspections which were the hallmark of the original regulation. It is important to note that this decision only protects members of the Free Speech Coalition, the plaintiff in the case. We suggest that all adult producers make sure their membership is in good standing, and if not, to join in order to take advantage of the protections.”
“Of course, we entirely disagree with the court’s holding that the regulations themselves are not prohibitively burdensome to producers under the First Amendment,” Duke added. “However, the court remanded some of the restrictions back to a lower court — including those that require business owners keep certain hours to make records available for inspection — and we’re hopeful they will be overturned. Over the next few weeks, we will be examining the decision in more detail to determine if we should appeal it en banc.”
For right now, producers should still keep records as they have been doing. However — for FSC members — the threat of warrantless drop-by inspections are gone. FSC is hopeful that attendant requirements to make those records available for 20 hours a week will soon be gone as well.
To join the Free Speech Coalition, please contact FSC Membership Director Joanne Cachapero at firstname.lastname@example.org or (818) 348-9373.