PHILADELPHIA, Pa. —In a hearing lasting just over two hours, U.S. District Judge Michael M. Baylson posed searching questions to both attorney J. Michael Murray, representing the Free Speech Coalition and 15 other plaintiffs, and Assistant U.S. Attorney Kathryn Wyer, representing the U.S. Department of Justice, regarding the federal recordkeeping and labeling law, 18 U.S.C. §§2257 and 2257A, better known simply as “2257.”
The case, Free Speech Coalition, et al. v. Attorney General of the United States, is about to celebrate its eighth anniversary, and is back before Judge Baylson on remand from the Third Circuit Court of Appeals. That body ruled last June, in a rehearing in light of two U.S. Supreme Court decisions, that the First Amendment issues attendant to the recordkeeping and labeling must be considered under “strict scrutiny,” whereas the entire previous record of the case had been considered under “intermediate scrutiny,” a less restrictive standard.
In the end, Judge Baylson made it quite clear that unless the government could meet its strict scrutiny burdens, he was inclined to rule 2257 to be unconstitutional, unless the government and the plaintiffs could arrive at an industry standard regarding ID checking/retention that would allow recognized commercial producers to be let out of 2257’s requirements.
In short, today’s hearing appeared to pave the way for an adult industry victory over 2257, making the eight-year battle well worth the time and expense.