PHILADELPHIA — U.S. District Judge Michael Baylson yesterday issued a memorandum in the Free Speech Coalition’s long-running lawsuit against the Justice Department over the federal recordkeeping laws 18 U.S.C. §§ 2257 and 2257A, ordering both sides to propose a decree within two weeks to settle First Amendment challenges to the statutes.
“The parties may conclude that coming to a joint agreement, even though neither side is getting everything it asks for, is superior to further appeals and possible further remands,” Baylson said in his 60-page memorandum.
“The court has purposely not attempted to finalize the exact parameters of this relief, in specific language. The court will require counsel to consider these rulings and propose a decree with precise language to carry out the court’s decision.”
The FSC and the American Society of Media Photographers sued the Justice Department over the statutes in 2009, offering up First and Fourth Amendment challenges to the laws that have been described by producers as burdensome.
Last year the FSC won its Fourth Amendment challenge over unreasonable searches and seizures at producers’ businesses at the 3rd U.S. Circuit Court of Appeals. The court invalidated a portion of §2257(c).
“The circuit court did not strike the requirement that a person who is subject to §2257(a) ‘shall maintain the records required by this section at his business premises’ but struck the remainder of the statute giving the attorney general more power to prescribe regulations as to what other places could house those records and, more importantly, that the records must be ‘available to the attorney general for inspection at all times,” Baylson wrote.
As the case moved forward, the FSC focused on its bid for permanent injunction enjoining the statutes’ enforcement because they are overly broad and unconstitutional relative to the First Amendment.
Baylson, in the memorandum, said that under the First Amendment challenge portion of the lawsuit, the court must look at new controlling precedents.
“Because the 3rd Circuit has ruled that the statutes are content-based and therefore subject to strict scrutiny, this court must decide, in evaluating the as-applied challenge, whether they are narrowly tailored to a compelling governmental interest,” Baylson wrote.
Strict scrutiny presumes a law to be invalid unless the government can prove the law's constitutionality and demonstrate a compelling governmental interest in keeping it.
“Also, the court must decide whether the two organizational plaintiffs, Free Speech Coalition and the American Society of Media Photographers, have standing to bring an as-applied challenge on behalf of their members,” Baylson wrote.
Baylson noted in his memorandum issued yesterday that even if the parties cannot agree totally on all issues, he requested that they attempt to agree on the language the court should use in its final judgment.
“If the parties cannot agree, then the court will require each party to submit their own draft and the court will make a final decision on the final decree,” Baylson wrote. “In the event the parties cannot agree, within 14 days (which time will be extended upon request if discussions warrant), the court will expect each side to propose its own decree with specific language as to statutory sections that are or not impacted, within 21 days, and as to any injunctive relief.”
In a statement today, Eric Paul Leue, the FSC’s executive director, said that Baylson’s order “represents an unprecedented win for the adult industry.”
“Major arguments made by the FSC have prevailed, and the court struck down a number of the statutes’ key provisions as unconstitutional under the FSC and other plaintiffs’ as-applied challenge,” Leue said.
“Specifically, it struck down the statutory scheme as to secondary producers, struck down the recordkeeping 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 FSC, 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.
“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.
“FSC 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 recordkeeping 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.”
Industry attorney Paul Cambria called Baylson's decision to require both sides to craft a decree on the outstanding issues a positive step forward.
"This is a very favorable and significant step forward, and chief counsel Michael Murray will no doubt propose a practical and favorable result for the adult industry," Cambria told XBIZ.
Another industry attorney, Lawrence Walters, added that Baylson's memorandum makes several important rulings including that Section 2257 should not apply to secondary producers, and that certain records keeping and labeling obligations are invalid under the First Amendment.
"Importantly, Judge Baylson agreed that imposing a prison term for 'paperwork violations' is unduly harsh and thus not the least restrictive means of accomplishing any legitimate objective," Walters told XBIZ.
"The final decree will require input from both the government and the plaintiffs, but it appears that much of Section 2257 will be gutted, while some ID and age verification requirements will remain in place.
"FSC’s attorneys have fought a tireless battle getting to this point, and should be commended for their efforts," Walters said.
Karen Tynan, another industry attorney, said that Murray has fought a brilliant legal battle against the government.
"While there is not a complete victory, this is pretty darn close," Tynan told XBIZ. "Judge Baylson’s memorandum at 60 pages is lengthy and comprehensive, and makes us wait just a bit longer for the final directives. Plaintiffs and defendants need to submit a proposed decree which will be used to create the specific language the judge will use in his decision.
"From the court’s ruling, it looks like secondary producer’s will not be required to meet the present standards," she said. "My clients and colleagues are pleased with this decision. Age verification for primary producers will remain, but the recordkeeping requirements for those producers and labeling requirements will be modified. The judge found that the criminal penalties for recordkeeping violations were not lawful, and that administrative penalties were more appropriate. This is huge.The threat of prison for a recordkeeping mistake has always frightened even the most paperwork adept producer.
"The memorandum leaves a lot of work in trying to draft a decree for the judge’s approval."
