PHILADELPHIA — A federal judge in Philadelphia listened to opposing arguments on motions for judgment this afternoon in the ongoing case, Free Speech Coalition v. Eric H. Holder.
The arguments were made before Judge Michael M. Baylson in the James A. Byrne Federal Courthouse in Philadelphia.
Representing the Free Speech Coalition in its case against the federal government was First Amendment attorney J. Michael Murray; representing the U.S. Justice Department was Kathryn Wyer.
The FSC has argued that federal recordkeeping laws 18 U.S.C. §§ 2257 and 2257A are overly broad and violate the First Amendment of the U.S. Constitution.
The Justice Department, however, has maintained that because the federal government has a compelling interest in protecting minors from sexual exploitation, 2257 and 2257A do not impose an unfair or unreasonable burden on companies that create or distribute sexually explicit material and therefore, are not unconstitutional.
Murray and Wyer were both present in Judge Baylson’s courtroom when he entered at 1:30 p.m. (EDT). After the judge listened to arguments in a hearing for a separate case, he moved on to the 2257-related hearing around 2 p.m.
At issue today was the concept of strict scrutiny as it pertains to 2257.
According to attorneys for the Justice Department, 2257 and 2257A both meet the narrow tailoring argument of strict scrutiny — and the FSC has argued that they do not. Strict scrutiny assumes that a law is invalid unless the government can show that it is constitutional and that government has a compelling interest in keeping it.
The Justice Department has asserted that because keeping minors out of sexually explicit material is something the federal government has a compelling interest in, 2257 and 2257A both survive strict scrutiny.
Before Murray and Wyer made their arguments, Baylson thanked the attorneys for their ongoing “diligence” in the case. And Murray thanked the judge for his hard work.
The statutes require adult companies to obtain proof of age for all models they shoot and maintain those records. The recordkeeping law has been on the books since 1988 but was broadened under the Justice Department of the George W. Bush Administration — and Murray, today, reiterated his assertions that 2257’s demands are overly broad.
Murray told the judge that adult companies have maintained a strict “industry standard” when it comes to checking the IDs of performers and verifying that they are adults. Adult performer Nina Hartley, a plaintiff in the case, has testified that the industry’s standards for age verification have been quite rigorous.
Baylson, however, wanted to know if the industry has actually put those standards in writing; Murray replied that it has not but stressed that his clients “have no problem” maintaining careful records.
“They would never hire anyone under 18,” Murray said of his clients in the adult industry.
Wyer disagreed with Murray that there is a widely accepted industry standard for age verification in the adult industry.
“There is no enforcement mechanism for the standard,” Wyer told Baylson. And Baylson replied that child pornography laws serve as an enforcement mechanism.
“The plaintiffs have not met their burden to show overbreadth,” Wyer said.
2257, Murray told Baylson, is unnecessary because child pornography laws carry penalties that are “astronomically higher” than 2257-related penalties — and those laws, Murray said, are a major deterrent against using anyone under 18 in a sexually explicit production.
Baylson, however, expressed concerns about the use of the word “teen” by some adult companies.
And if he were to consider a “less restrictive requirement” than 2257, Baylson said, he would want to make certain that it was rigorous enough to keep underage individuals out of porn.
“There seems to be a reluctance,” Baylson said, to “put industry standards in writing.” Murray replied, “not at all,” noting that his clients would have no problem at all doing that.
Wyer told Baylson that the concept of an industrywide standard on age verification in adult is problematic because “there is no monolithic adult industry that you can speak of.”
Because of today’s digital technology, Wyer said, adult businesses come in many different forms — and in that type of environment, she said, 2257 remains an important tool for keeping minors out of pornography.
Baylson, making a distinction between illegal child pornography and sexually explicit adult material, asked Wyer if there were any examples of adult entertainment companies knowingly using minors in their productions. Wyer did not cite any examples.
Baylson stressed to Wyer that whatever judgment he may render on 2257 in the future, strict scrutiny must be applied.
“I have to consider less restrictive alternatives as part of strict scrutiny in my analysis,” Baylson told Wyer. And a possible alternative to 2257 in its present form, Baylson said, could be an official “written standard” for age verification in the adult industry.
Free Speech Coalition v. Eric Holder went to trial in June 2013, when Baylson listened to an abundance of testimony for and against 2257 and 2257A at the Byrne Federal Courthouse in Philadelphia.
Witnesses for the FSC included Hartley as well as sexologist Carol Queen and erotic photographer Barbara Nitke, while witnesses for the Justice Department included anti-porn feminist Gail Dines and anti-child pornography researcher Janis Wolak.
After considering the testimony of both sides, Judge Baylson ruled in favor of the Justice Department in July 2013. But the FSC continued to challenge 2257 and 2257A in the federal courts and is still doing so four years later.
The subject of sexting, which was raised in the 2013 trial, was addressed today.
Murray, in the case, has argued that 2257 is an unfair standard at a time when so many Americans are sending private, sexually explicit images digitally.
“A universe of private, sexually explicit images” are being distributed digitally, Murray said. Wyer, however, countered that the subject of private sexting is irrelevant because many of the people sending those images are not in the adult industry.
“All of the plaintiffs were engaged in commercial productions,” Wyer said.
Baylson also expressed concerns that some of the witnesses who testified for the FSC in 2013 might have left the adult industry. One of the witnesses mentioned was Tom Hymes, who testified in 2013 that his website, The Daily Babylon, had become dormant because 2257’s recordkeeping requirements imposed too heavy a burden on the site.
And today, Murray told Baylson that because Hymes has considered resuming the site, his arguments are still relevant.
In a 29-page brief filed by Murray and fellow FSC attorney Lorraine R. Baumgardner on Jun. 8, they wrote wrote, “It is the rare case in which the government can clear strict scrutiny’s formidable hurdles. This is not that rare case.”
The brief filed by Murray and Baumgardner was in response to arguments the Justice Department made in a 46-page brief filed on May 15.
The Justice Department, in that May brief, argued, “plaintiffs’ proposal that members of the adult industry should be trusted to check identification on their own, in lieu of statutory requirements, relies on purported ‘industry standards’ without any genuine notion of a uniform ‘industry,’ much less an established set of standards that every industry member follows.”
But FSC attorneys, in their responding brief in June, said that in order for a law to survive strict scrutiny, “the government must prove that a plausible, less restrictive alternative to the challenged regulation is not effective.”
And federal laws prohibiting the creation, sale or distribution of child pornography, the FSC has maintained, are sufficient means of keeping minors from participating in sexually explicit material.
The FSC has also been arguing that because the adult industry had strict and rigorous age-verification policies long before 2257 and 2257A were implemented, the laws are unnecessary as well as burdensome.
Even if the laws were to be struck down as unconstitutional and abolished, the FSC has argued, adult companies would still have a rigorous process for insuring that only legal adults participate in sexually explicit material.
Today’s arguments for and against 2257 and 2257A came about eight months after Judge Baylson entered a judgment in favor of the FSC and against the Justice Department over parts of 2257.
Those parts, Baylson said in his judgment in January, were facially unconstitutional under the Fourth Amendment, which protects against excessive search and seizures.
After Baylson’s Fourth Amendment-related ruling in the case, the FSC continued to challenge 2257 and 2257A on First Amendment grounds.
In January, Murray told XBIZ he considered Baylson’s ruling a “great achievement” and said that ultimately, the FSC would like to see 2257 struck down entirely.
After today’s oral arguments for and against 2257, it remains to be seen how soon Baylson will issue a judgment in response to them.
Baylson stressed that he will give both arguments careful thought, bearing in mind the necessity of strict scrutiny in the case.
