How Judge Baylson Came To His Conclusion To Strike 2257 (AVN)

Read the full article by Mark Kernes at AVN.com

PHILADELPHIA, Pa.—The fight the Free Speech Coalition has been waging against the federal record-keeping and labeling laws (aka "2257") has been a long one. Not Hundred Years War long, but pretty damned long. It was back in August of 2004 that Free Speech filed comments regarding the then-new 2257 regulations promised by then-Attorney General John Ashcroft following an embarrassing appearance before Congress where he admitted that the 2257 law had never been enforced, and completed by his successor Alberto Gonzales. FSC announced that it intended to challenge the new regs in May of 2005, and filed that suit roughly one month later in Colorado. The legal team at that time consisted of Attorneys H. Louis Sirkin, Paul Cambria and Michael W. Gross, and in December of that year, U.S. District Court Judge Walker D. Miller ruled that despite the new regs, secondary producers need not keep ID records on movies they distributed, though primary producers, including webcam models, were required to keep copies of the sexually explicit material they generated. (Of course, later changes to the regulations reinstated the secondary producer record-keeping requirement.) However, in general, his decision reinforced the legality of 2257 as a concept.

But Free Speech wasn't the only entity fighting 2257 at that time. Attorney J. Michael Murray, the lead attorney in the current 2257 case, had been fighting his own battle with it since the late '90s, in connection with his client Connection Distributing Co., a publisher of swinger magazines which objected to being forced to make its contributing swingers' names and addresses public. Murray won his case, and in October of 2007, a three-judge panel of the Sixth Circuit Court of Appeals agreed. However, on further appeal by the government, the full Sixth Circuit overturned its panel's decision in early 2009—and Connection went out of business.

All that leads up to Free Speech filing another lawsuit, this time against not only the 2257 regulations, but against the law itself—and it chose none other than J. Michael Murray to lead that litigation, which commenced in October of 2009.

We won't go into further details as to the course of that litigation—those interested need only search "2257" on AVN.com—but suffice to say the lawsuit was dismissed once before eventually being reinstated, and has been before the Third Circuit Court of Appeals at least three times on one issue or another—the most recent of which resulted in the appeals judges determining that the law needed to be examined under "strict scrutiny," meaning that in order for it to be upheld, the government needed to establish that the law served a compelling governmental interest or goal, that it was sufficiently narrowly tailored to accomplish that interest or goal, and that it was the least restrictive means to achieve that goal. For the most part, Judge Baylson found that the government had failed to justify the law in most respects.