Page 56 - AVN July 2013

2257 | By Mark Kernes
(stock photo)
Eight Days Philly A A b bl lo ow w- -b by y- -b bl lo ow w a ac cc co ou un nt t in o of f t th he e f fi ig gh ht t a ag ga ai in ns st t 2 22 25 57 7
On October 7, 2009, Free Speech Coalition (FSC), the trade organization of the adult entertainment industry, filed its most comprehensive challenge to date to 18 U.S.C.
§§2257 and 2257A, the federal recordkeeping and labeling law that’s been on the books in one form or another since 1988. The suit was filed in the U.S. District Court for
the Eastern District of Pennsylvania. “We’re very excited,” plaintiffs’ attorney J. Michael Murray told reporters at the time. “We plan on filing a full-scale attack raising sever-
al First Amendment issues, some Fifth Amendment issues and we think a very strong Fourth Amendment issue as well, that we plan on filing against the Attorney General of
es
FEATURE
the United States Eric Holder.” The latest chapter in the lawsuit, which has faced injunctions, a dismissal and a reversal of the dismissal in an appeal to the Third Circuit,
finally went to trial on June 3. Below is an excerpt of legal editor Mark Kernes’ coverage of the case, which can be found in its entirety on AVN.com.
would impose on his members. Murray replied that with
digital cameras enabling photographers to shoot thousands
of images of a single event, if they needed to obtain
identification documents on each subject who had
engaged in sexually explicit conduct, and keep cross-
indexed files on each of them, it would be very difficult.
Even more difficult, he said, would be attaching 2257
label to each image.
When it came Wyer’s turn to question the witness, she
brought out that photographers “use their own judgment”
regarding whether to ask a model for age verification, and
Mopsik agreed that it was sometimes not possible to tell a
young model’s actual age simply by looking at her/him.
The next witness was defense attorney Jeffrey Douglas,
who also serves as board chair of the Free Speech
Coalition, and represents many clients regarding their
2257 requirements. Murray got Douglas to trace the
history of the 2257 law.
Murray then asked about how many underage perform-
ers had ever been found in the industry, and Douglas
noted that although there had been several accusations,
before 2257 was enacted there had been only two, the
most famous of which was T raci Lords. (The other was
Alexandria Quinn.) Douglas was then asked, if 2257
disappeared tomorrow, would the industry begin using
minors in its productions? No, Douglas replied, both for
moral reasons and because of child pornography laws.
Douglas further testified about the difficulty complying
with certain 2257 requirements, noting that even minor
errors are felonies that could send a producer to prison for
years, adding, “Perfection is the minimum standard to
avoid committing felonies.”
When asked what could be done to make the law more
equitable and easier to follow. Douglas noted that FSC
had suggested that the government create standards for
third-party record keepers, but that as things stand now, if
a third-party record keeper screws up the producer
remains criminally liable.
Wyer’s first question on cross was to note that Douglas
had not testified regarding the impact of child pornogra-
phy on the children themselves—a question to which
Murray objected as irrelevant, which the judge sustained.
Wyer then changed topics and asked about FSC member-
ship in an apparent attempt to undermine the organiza-
tion’s standing in the suit. It is unlikely, however, that
Judge Baylson will rule that it doesn’t, considering the >>
Day 1: Trial Starts Off June 3
As the case Free Speech Coalition, et al v. Holder kicked off,
Judge Michael M. Baylson wasted no time getting down
to the business of deciding the constitutionality of 18
U.S.C. §2257 and 2257A. Court convened promptly at
9:15 a.m. in Courtroom 3810 of the James M. Byrne
Federal Courthouse near Independence Square.
Representing FSC and 16 additional plaintiffs were J.
Michael Murray and Lorraine Baumgartner, while the
government mustered U.S. Department of Justice Civil
Division attorneys Kathryn Wyer, Nathan Swinton,
Hector Bladuell and James Schwartz.
By agreement, neither side gave an opening statement,
although both had filed trial briefs setting forth much of
what they would have said in such statements.
The day’s first witness was Eugene Mopsik, executive
director of the American Society of Media Photographers
(ASMP). On questioning by Murray, Mopsik noted that
some members also create erotic photography and sexually
explicit images.
Murray then recited several of the requirements of 2257
to Mopsik, and asked what burdens he thought those
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