Yesterday, the federal district court in Philadelphia issued its opinion in Free Speech Coalition’s challenge to 18 U.S.C. §§ 2257, 2257A under the First Amendment. It represents an unprecedented win for the adult industry!
Major arguments made by the Free Speech Coalition have prevailed, and the court struck down a number of the statutes’ key provisions as unconstitutional under the Free Speech Coalition and other Plaintiffs’ as-applied challenge. Specifically, it struck down the statutory scheme as to secondary producers, struck down the record-keeping requirements as to all producers, and struck down the statutes’ criminal penalties as unduly harsh. The only portion of the statutes the court upheld is the requirement that primary producers check the IDs of their performers to verify their ages.
From the beginning of this case, Judge Baylson has focused heavily on how best to prevent child pornography, a concern shared by all the litigants, including the Free Speech Coalition, and the Government. However, in yesterday’s ruling, the Court recognized that the legal adult industry was entirely separate from the illegal production of child pornography, and that the record-keeping requirements designed for the former were not narrowly tailored, and had significant downsides:
The Court went out of its way to acknowledge the importance of FSC in bringing the case, and the incredible work done by our ‘superb’ counsel J. Michael Murray and Lorraine Baumgartner:
“Given the many small individual producers of adult pornography, who could not afford to maintain a case of this nature, the organizational Plaintiffs have served a valid purpose in bringing this litigation with superb counsel and very effective litigation strategy. The inability of an individual producer to seek a declaration establishing and enforcing their First Amendment rights is an important reason to allow associations, of producers and others, to gather together and sponsor litigation of this nature.”
With this and the courts’ earlier ruling striking down portions of the statutes under the Fourth Amendment, little remains of the unnecessary and unfairly burdensome 2257 regulations.
Free Speech Coalition members, as well as all members of the legal adult industry, should applaud the work that counsel J. Michael Murray and Lorraine Baumgardner of Berkman, Gordon, Murray & DeVan have put into a long and incredibly arduous case that has been going on since 2009. While we still await a final judgment, and while there are likely further appeals, the ruling finally signals that adult producers may no longer have to fear criminal prosecution for mere record-keeping violations.
The production of child pornography rightfully remains a serious and despicable crime unaffected by this ruling.
We await the Court’s final judgment in the case, but the yesterday’s opinion is a strong indication that our arguments regarding both First and Fourth Amendment protections have prevailed.
While yesterday’s ruling is not a complete victory, it is a huge victory. Until the final judgment issued, our members should continue to comply with the regulations as written. We also recommend that anyone interested in the case, the regulations or the industry fight against child pornography review our specific issues with the regulations.