Page 115 - AVN July 2013

material covered by the 2257 regulations, from explicit
images to masturbation to BDSM images to “lascivious
exhibition of the genitals,” observing that the first court
to consider the legality of 2257, in the American Library
Association case in the late 1980s, had said that “any
frontal nude image in an erotic pose” would be included,
and that considering the conviction of the defendant in
U.S. v. Knox, about a person who videotaped clothed
children with the camera focusing on their genital area,
nudity wasn’t even required for an image to fall under
2257. He also noted that in 1988, when 2257 was
passed, legislators had no idea how far image-producing
technology would expand—into the internet, Facebook,
cellphones, Twitter and Instagram—but that the statute
still covered all of those technologies.
Murray also said that the statute’s overbreadth covered
far more images of people who could never be mistaken
for minors than those who could. He further noted that
Linz had said that “tens and tens of millions” of people
have sexted and emailed what he described as private
sexually explicit content, and posted same on social
media networks such as Facetime and Instaporn, and that
couples have shared intimate images of themselves with
their partners via Skype and similar services.
At that point, Judge Baylson interrupted him to ask
where Murray would draw the line regarding couples;
could they be unmarried and committed, or even simply
friends? Murray said it didn’t matter; all of it was protected
speech and all of it fell under 2257. The judge then asked
if a husband and performing sexual acts for Vivid
Entertainment; would be protected? Murray noted that if
they performed for Vivid, it would transform private
speech into commercial speech, which was a different
animal, but that the material would nonetheless be
protected speech.
Murray noted that when the Third Circuit, which had
remanded the current case to Judge Baylson, referred to
“private” images, it meant images “shared privately by
everyday citizens,” but that the 2257 law would nonethe-
less apply to them and that those participants would also
be required to keep and cross-reference records, put 2257
labels on the images, and be available 20 hours per week
for FBI inspections. However, Murray noted that the vast
majority of those who created such images had no idea
that 2257 applied to them, and he wondered what the
American people would do if they became aware of the
fact that they were breaking the law just by sending
explicit images.
Regarding the Fourth Amendment claims, Murray
drew the Court’s attention to U.S. v. Jones, a California
case where police had secretly put a GPS tracker on a
man’s car, which the Supreme Court ruled violated the
defendant’s right against unwarranted search and seizure.
Murray compared that to the 28 inspections which the
FBI had undertaken at adult businesses and, in six cases,
the business owners’ homes. As to the government’s argu-
ment that such privacy claims were not “ripe,” Murray
noted that although the inspections had stopped in 2007
and the inspection unit disbanded, it could be restarted
at any time and the same violations would exist.
Finally, Murray asked that Judge Baylson declare that
both the statute and the regulations attendant to it are
unconstitutional under the First and Fourth
Amendments.
The government’s closing was handled by Kathryn
Wyer, who ignored most of the points Murray had made,
instead arguing that “no one disputes the fact” that sexu-
ally explicit material is constitutionally protected, that the
2257 regulations affect actual human beings, and that the
purpose of 2257 is to protect children. She claimed that
there were only limited issues before the court and that
the plaintiffs’ argument that the 2257 statute and regula-
tions were not “narrowly tailored” to satisfy the require-
ments of the “intermediate scrutiny” that the Third
Circuit said was the highest level of scrutiny that the law
was required to meet could only apply to plaintiffs’ First
Amendment claims (the overbreadth and vagueness
arguments) and not to its Fourth Amendment privacy
violation claims.
Wyer divided the 15 plaintiffs into three groups: adult
industry plaintiffs (Free Speech Coalition, Sinclair
Institute, Channel 1 Releasing, Dave Cummings, Nina
Hartley, Tom Hymes), fine art photography plaintiffs
(American Society of Media Photographers, David
Steinberg, Barbara Nitke, Barbara Alper, David
Levingston, Michael Barone) and “educational” plaintiffs
(Betty Dodson, Carlin Ross, Carol Queen). She argued
that the burdens of 2257 recordkeeping should be
considered a cost of doing business for the industry
plaintiffs, and that while the Third Circuit had asked the
trial court to look into the possibility of finding an
exemption to the law for those who produce content only
with “obvious adults,” none of the industry plaintiffs fit
that criterion.
noted thatthe
vast majorityof those
who created
”Attorney Murray
explicit imagesthat
were shared privately
had no idea that
2257 applied
to them.
Wyer gave special attention to Hymes, who testified that
his speech had been chilled because he had considered
adding explicit content to his website, but avoided doing
so because of 2257 concerns. Wyer charged that Hymes
had a full-time job at AVN and never really intended to
carry through with his plans to expand his site’
s
content—an argument which seemed also to question
Hymes’ standing to participate in the lawsuit.
Regarding the photographer plaintiffs, Wyer argued
that the individual plaintiff photographers, who had
testified that the majority of subjects they shot were
obviously adults, sometimes did shoot younger models
and therefore should be covered by the law.
Turning to the “educational” plaintiffs, Wyer argued
that what they all wanted was to be able to use
anonymous subjects—in Ross and Dodson’s case, for
their online “Genital Art Gallery,” and in Queen’s case, as
participants in webcasts of the annual Masturbate-a-
thons—and that the Third Circuit had said that such
anonymity would be a danger to minors.
Judge Baylson interrupted to ask how Wyer would deal
with the privacy concerns of sexting or privately
webcasting couples, and she noted that none of them
were plaintiffs in the case for an as-applied challenge, and
when the judge noted that Alper had brought just such a
challenge, Wyer stated that if she or any of them were so
affected in the future, they could bring their own cases to
deal with it at that time.
Wyer further claimed that without 2257 the adult
industry would not check IDs to make sure performers
were adults—ignoring the existence of child pornography
laws that would send such producers to prison for years
for shooting minors.
She also argued that much of the plaintiffs’ conduct
was within the “plain, legitimate sweep” of the regula-
tions, and that the demand for younger performers, as
admitted by both Dines and Linz, made it necessary to
continue to force producers to check and keep identifica-
tion documents, and that putting a cut-off age of, say, 25,
was inviting trouble in the form of disputes between
inspectors and producers over who looked young enough
to need an ID document checked.
When Judge Baylson questioned Wyer about what
should be done regarding private sexually explicit photos
and videos posted to social networking sites and the like,
Wyer said such problems should be the subject of later
as-applied challenges, but that they had no place in this
trial.
Finally, Wyer argued that the explosive growth of
sexually explicit images on websites and DVDs, in books
and anywhere else they appeared required that 2257 con-
tinue to be the law of the land, and that while inspection
procedures could change if the inspection team were
reconstituted—noting that FBI agents had been
“completely accommodating” toward producers who were
unavailable when the FBI first showed up at their
addresses—2257 should not be struck down.
After Wyer was done, Judge Baylson reminded both
sides that there would be a rapid post-trial briefing
schedule, with both parties filing post-trial briefs which
would concentrate on the evidence-supported facts of the
case; that the government has the burden of proving that
the law is narrowly tailored enough to satisfy the plain-
tiffs’ overbreadth/vagueness claims, while the plaintiffs
would have to deal with the Fourth Amendment privacy
issues; and that reply briefs to the post-trial briefs would
be limited to 15 pages each, this time with the govern-
ment attempting to rebut the privacy issues and the
plaintiffs needing to rebut the narrow-tailoring issues. He
set a deadline for the post-trial briefs for June 28, and for
the reply briefs of July 5, and promised a decision by the
end of July.
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