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Back in May, I wrote a cautionary post about the legal-wrangling equivalent of dancing in the end zone before the instant-replay review of your touchdown has been completed.

At the time, part of my concern was over the still-unfinished business at the circuit court level — because the court’s request that the two sides to negotiate an agreement on a revised set of 2257 regulations was pending. The rest of my concern was rooted in the assumption that whatever the two sides might agree upon, there would still be portions of the court’s decision which one side or the other would want to appeal.

The negotiations between the FSC and the government didn’t produce any sort of agreement, of course, making an already likely appeal of the court’s decision a virtual certainty. And sure enough, since U.S. District Judge Michael M. Baylson issued his memorandum opinion on September 24, both the Free Speech Coalition and the DOJ have filed notices of appeal in the case. The DOJ filed its notice on October 1, the FSC filed its cross-appeal the following day.

Neither party has filed anything beyond the initial notice of appeal, so there’s not much to go on yet in terms of evaluating their arguments. For now, the important thing to understand is the reason why we have two appeals pending before the Third Circuit in the case, as that may be a source of confusion for those who haven’t followed the case closely.

In short, neither side got what it wanted from Judge Baylson. While it was understandable why the FSC considered both Baylson’s order issued in May and his final decree significant victories for the adult industry, portions of the judge’s ruling went against the FSC, as well.


Gene Zorkin has been covering legal and political issues for various adult publications (and under a variety of different pen names) since 2002.