PHILADELPHIA, Pa. — Friday morning, lawyers for the Free Speech Coalition (FSC) and the other plaintiffs in the years-long litigation challenging the constitutionality of 18 U.S.C. § 2257, known more commonly in the adult industry as “2257,” filed their response to last month’s opening brief by the U.S. Department of Justice (DOJ) before the U. S. Court of Appeals for the 3rd Circuit.
The attorneys for the plaintiffs (called in this stage “appellees/cross-appellants”), J. Michael Murray and Lorraine R. Baumgardner, argued that 2257 — described by the FSC as “a federal record-keeping law aimed at preventing the use of minors in adult productions” — does not serve a “compelling governmental interest,” is not “narrowly tailored” to provide such a service and does not provide the “least restrictive” way to reach that outcome.
Last August, U.S. District Judge Baylson in Philadelphia gave the FSC and co-plaintiffs a partial victory, finding that large parts of 2257 were unconstitutional on First Amendment grounds. The plaintiffs had also obtained an earlier victory on Fourth Amendment grounds from a 3rd U.S. Circuit ruling.
The Justice Department appealed Baylson’s final judgment and decree late last year. The DOJ filed their brief on March 27th.
On Friday, FSC attorney Murray alleged that the plaintiffs’ partial August victory was in fact incomplete (Judge Baylson had upheld two provisions), since given that 2257 “failed the narrow tailoring and least restrictive means components of strict scrutiny,” the lower court “erred in not striking down the Statutes in their entirety.”
Murray also argued in favor of the FSC and another plaintiff having the standing to bring forth the challenge, and for the claim that implementation of 2257 regulations is “unconstitutionally overbroad,” or too imprecise to achieve the stated goal.