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BUSINESS NEWS
PHILADELPHIA STORY
FSC’s 2257 lawsuit moves closer to an industry-favorable decision
During today’s argument, two of Wyer’s main points were, first of all,
that producers in the adult industry use performers who look young,
possibly young enough to be minors, and that they even advertise that
youthfulness through titles that emphasize the word “teen”—and second
of all, that it’s unclear whether the plaintiff organizations—Free Speech
Coalition (FSC) and the American Society of Media Photographers—
represent enough of the people producing sexually explicit content to be
able to speak for all of those who do.
That last point was the subject of some argument, with Murray noting
that so far, only established adult industry producers had been the
subject of 2257 inspections (which now require a warrant, thanks to the
Third Circuit’s most recent ruling), suggesting that it was exactly those
producers represented by FSC who felt nearly the entire brunt of 2257
enforcement.
Murray also argued that for a very large portion of adult performers,
2257 records aren’t needed because they are obviously adults—but
nevertheless, 2257’s burdens fall on all of them, and under strict
scrutiny, the law as applied would have to be struck as not narrowly
enough tailored, though under intermediate scrutiny, it would survive,
since that standard only requires that the law “furthers an important
government interest.” He further noted that the number of performers
who are clearly adults is “not insignificant.”
Wyer responded by claiming that it was up to the plaintiffs to show
that alternatives to 2257 would be less burdensome on the industry, and
that it wasn’t the government’s job to come up with less burdensome
alternatives to the existing law. Murray disagreed, stating that the burden
was on the government to prove that 2257 satisfied all three prongs of
the “strict scrutiny” test, and that the plaintiffs had no such burden.
COURTROOM REPORT | By Mark Kernes
On September 28, the Free Speech Coalition’s long battle against the record-keeping rules
that make doing business more difficult for the adult industry came one step closer to
a positive resolution. In a hearing on September 28 in Philadelphia that lasted just over
ATTORNEY J. MICHAEL
two hours, U.S. District Judge Michael M. Baylson posed searching questions to both
attorney J. Michael Murray, representing the Free Speech Coalition and 15 other plaintiffs,
MURRAY ARGUED
and Assistant U.S. Attorney Kathryn Wyer, representing the U.S. Department of Justice,
THAT FOR A VERY LARGE
regarding the federal recordkeeping and labeling law, 18 U.S.C. §§2257 and 2257A, better
known simply as “2257.”
PORTION OF ADULT
The case, Free Speech Coalition, et al. v. Attorney General of the United States, is about to
celebrate its eighth anniversary, and is back before Judge Baylson on remand from the Third
Circuit Court of Appeals. That body ruled last June, in a rehearing in light of two U.S.
PERFORMERS, 2257 RECORDS AREN’T
Supreme Court decisions, that the First Amendment issues attendant to the recordkeeping
and labeling must be considered under “strict scrutiny,” whereas the entire previous record
NEEDED BECAUSE THEY
of the case had been considered under “intermediate scrutiny,” a less restrictive standard.
The judge began by noting that since the Third Circuit hadn’t declared 2257
ARE OBVIOUSLY ADULTS—
unconstitutional under the new stricter scrutiny that applies to the law, he would be doing
his best to deal with the questions raised by that Third Circuit decision, two of the most
important being whether the law was the least restrictive means by which the government
BUT NEVERTHELESS, 2257’S BURDENS FALL ON
could accomplish its stated objective of keeping minors out of adult productions, and
ALL OF THEM.
whether the law was narrowly tailored enough to accomplish that objective without
burdening those who produce adult material where the performers are clearly adults.
Some of the early discussion revolved around the burdens 2257 places on non-adult
industry “producers”: couples shooting videos of themselves having sex in their own home,
and people sexting to each other on their phones and computers—material that would
likely not be shared with others, but for which records needed to be kept under 2257.
Wyer argued that such “producers” really weren’t burdened by the law—the unstated
reason being that they likely weren’t even aware of the recordkeeping requirements—but
the judge stated that they were nonetheless important in considering whether the law was
overbroad, a close relative, legally, to the “narrowly tailored” question. However, the judge
noted that the U.S. Supreme Court has yet to make a definitive ruling as to what constitutes
“overbreadth” in a law, though numerous cases have dealt with the concept in one way or
another.
On that score, Wyer said that the Justice Department had been guided by a Sixth Circuit
ruling in an earlier 2257 case, where that court found that private production of adult
material was not covered by 2257, though she acknowledged that that restriction was at
odds with earlier Third Circuit rulings in the current case.
It was at this point that Wyer trotted out the government’s theory
that everyone who created sexually explicit content, whether they be
someone in the recognized adult entertainment industry or some child
pornographer shooting in their basement, was the target of the 2257
law, and even if no recognized adult producer (like, for instance, all FSC
members) used minors in their productions, the law should be upheld
because the child pornographers (who never have and never will keep
2257 paperwork) do use them.
Judge Baylson disagreed with that assessment, noting that all of the
plaintiffs are above-ground business people and the government had not
produced any evidence that any of them had produced explicit content
with minors. Wyer’s only retort was that one plaintiff, photographer
Barbara Alper, testified that she had not checked IDs of those appearing
in some videos she had shot in public locations like Fire Island, N.Y.
(Continued on page 44)
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