Page 34 - AVN July 2015

LEGALESE | | By Clyde DeWitt
Limitations on a Statute
issue of whether
”Addressing the
unannounced
inspections were
Does the 2257 decision represent a sea change?
Good news is difficult to come by in this
terest while not burdening substantially
inspection program in place these days.
industry. But there was some of it of
more speech than necessary to do so, yet
However, it rarely carries the day when
late: the decision of the United States
leaving “ample alternative channels for
the government “promises to be good”—
Court of Appeals for the Third Circuit in
communication.” Prevailing on the First
and this was no exception.
the Free Speech Coalition’s challenge to
Amendment challenge, then, was a tall
The court made short work of that
2257. That’s 18 U.S.C. §§2257 & 2257A,
order, especially in view of the fact that
argument, noting that the requirement
the court already had held in its first
that the plaintiffs be at the ready to face
look at the case that the statute in
unannounced inspections, meaning
in case you have been living under a
rock or you are reading your first issue
really necessary,
the government
indeed shot itself
in the foot with
its own evidence
LEGAL NEWS
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
ClydeDeWitt@earthlink.net. More information can
be found at ClydeDeWitt.com. This column is not a
substitute for personal legal advice. Rather, it is to alert
readers to legal issues warranting advice from your
personal attorney.
34 | AVN.com | 7.15
of AVN.
The decision is landmark: Free Speech
Coalition, Inc. v. Attorney General of the
United States, ___ F.3d ___, 2015 WL
2240346 (3rd Cir., May 14, 2015).
Rarely is any component of any federal
statute struck down. Accordingly, two
important points warrant visiting.
Point One is the fact that the rarity of
striking down a federal statute, even in
part, cannot be over-emphasized. It just
doesn’t happen very often. Because of
that, striking down of a federal statute
is the surest path to the United States
Supreme Court—and that’s according to
Dean Erwin Chemerinsky of University
of California Irvine School of Law, one
of a small handful of supreme experts
about the Supreme Court. Also, the
lower court still may have some work to
do. So, this battle should not be
considered over just yet.
Point Two is to give credit to attorney
Michael Murray, an attorney who is as
good as exists and a dear friend of this
author for over 30 years. Mike is one of
those rare people that is wonderful to
know—someone with whom to discuss
legal theories; join for lunch; work on
a legal committee together (Michael
and the author share positions on the
First Amendment Lawyers Association’s
Board of Chair Emeritus and the ACE
Legal Advisory Board) or have a drink
after work. A super person.
The overwhelming uphill battle
was that this appellate court already
had decided in this same case that the
challenge was subject to analysis under
intermediate scrutiny, rather than strict
scrutiny. That is significant because,
while the government has the burden
under either standard, its burden under
strict scrutiny—generally stated as use
of the least restrictive means to serve a
compelling governmental interest—
is much greater than is the case
under intermediate scrutiny,
generally described as advancing
a substantial governmental in-
several ways furthered a substantial
governmental interest. After much dis-
cussion, analysis of which is beyond the
scope of this article, the court rejected
the First Amendment claims.
In so doing, however, it is signifi-
cant to note that the court addressed
the claim that the statute was invalid
because it applied to non-commercial
images, particularly the prevalence of
“sexting.” While the court found that
neither that issue nor the overreaching
of the statutes [2257 and 2257A] by
application to oldsters invalidated the
statutes due to the many legitimate
applications of the statutes, the discus-
sion of application to non-commercial
activities is of interest. Because of some
language from Congress in enacting
and amending 2257 and conflicting
language in the regulations, there has
been a question over the years as to
whether 2257 applies to non-commercial
activities. This opinion makes clear that
it does.
What gained some traction in the low-
er court and gained one hundred percent
traction in the appellate court was the
claim that 2257 inspections consisted
of unauthorized, warrantless searches
under the Fourth Amendment. The trial
court had struck down the inspection
provision to the extent that the 2257 re-
cords were located in the record-keeper’s
private residence. The Court of Appeals
went further.
The plaintiffs overcame a number of
the government’s efforts to beat back the
Fourth Amendment challenge, beginning
with a rather technical defense of lack
of something called “justiciability”: the
government claimed that
none of the plaintiffs had
shown a threat of injury
because there is
not an
undergoing the costs of doing so, was
a real harm. Moreover, the existence of
past enforcement is enough to put a chill
in everyone.
Getting to the meat of the Fourth
Amendment claims, the court addressed
the government’s claim that that the
porn production industry was one of
“[c]ertain industries [that] have such
a history of government oversight that
no reasonable expectation of privacy
could exist.” However, comparing some
of those actually heavily regulated
industries—funeral directors, gaming
activities and automobile junkyards—the
court found that adult motion picture
production did not have comparable
characteristics, such as licensing and
registration.
Addressing the issue of whether
unannounced inspections were really
necessary, the government indeed shot
itself in the foot with its own evidence:
“Here, the Government has
all but admitted that warrantless
searches are unnecessary. As the
District Court found, both FBI
agents testified that it was high-
ly unlikely that a producer could
assemble Section 2257 records on
short notice. ... And we agree with
law enforcement’s testimony that
the destruction of evidence is not
a real concern, given that to do so
would only compound any criminal
violation of the Statutes. Further,
law enforcement here conducted
nearly one third of its inspections
under the Statutes after providing
notice and without any reports
of records fabrication. Thus, the
record establishes that the type of
records required to be maintained,
given their scope as well as the
need for indexing and cross-refer-
encing, could not easily be recreated
on short notice and violations
concealed.”