2257 Legal Team Responds to DOJ's New Recordkeeping Theory

PHILADELPHIA, PA—The latest move in the long-running adult industry lawsuit against the federal record-keeping and labeling law, 18 U.S.C. §2257, was the filing today of the plaintiffs'/appellants' response to the new theory of the case expounded by the U.S. Department of Justice attorneys. That theory, that "secondary effects" justify the continuation of voluminous and complicated record-keeping by adult producers, was set forth in the DOJ's most recent filing opposing a reconsideration or en banc hearing on the Third Circuit's ruling upholding Judge Michael Baylson's verdict in the lawsuit. The plaintiffs'/appellants' arguments as presented here rely heavily on the recent U.S. Supreme Court ruling in Reed v. Town of Gilbert, where Justice Clarence Thomas, writing for a six-member majority, declared, "Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This commonsense meaning of the phrase 'content based' requires a court to consider whether a regulation of speech 'on its face' draws distinctions based on the message a speaker conveys. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny." [Citations omitted here and below] As First Amendment attorneys J. Michael Murray and Lorraine R. Baumgardner point out in this latest filing, that requirement of strict scrutiny of the law holds "regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech," the attorneys argue, again quoting Justice Thomas. Therefore, their position is that the Reed decision should control the outcome of the appellate court's review of Judge Baylson's decision. The attorneys then turn their attention to the issue of why City of Renton v. Playtime Theatres, the original "secondary effects" case, does not apply to the issues currently before the court. "Key to that decision was its finding that the constitutionally protected expression displayed inside adult theaters caused crime and reduced property values in the neighborhoods surrounding them," the attorneys write. "In other words, those were the adverse effects caused by the expression being offered in those theaters." [Emphasis in original quotes here and below] Clearly, however, the production of adult content utilizing young-looking performers does not cause the use of minors in such productions, and it is that alleged effect that the government has always used to justify its record-keeping requirement—even though, if an adult production were to use minors in sexually explicit content, that producer would be liable under existing child pornography laws, irrespective of whether the producer kept identification records of the performer involved. "Renton’s secondary-effect doctrine is predicated on the determination that a body of constitutionally protected expression—that is, sexually-oriented material offered by adult brick-and-mortar bookstores and movie theaters—causes adverse secondary effects, such as crime and neighborhood blight, on their surrounding communities," the attorneys argue. "It was on that basis that the Court determined Renton’s and [Alameda Books v. City of] Los Angeles’s zoning regulations aimed at the adverse secondary effects of crime and blight said to be caused by the constitutionally protected speech offered by adult bookstores and theaters could be reviewed under intermediate scrutiny, rather than strict scrutiny. "That premise has no application here," the attorneys continue. "The speech regulated by 18 U.S.C. §§ 2257, 2257A is constitutionally protected sexually explicit expression depicting adults in all manner of genres, including artistic, journalistic, educational, and private expression. Indeed, this is a First Amendment case precisely because the statutes and regulations burden constitutionally protected images of adults. For the Renton adverse secondary-effects theory to be even analogous, (let alone applicable), it would be necessary to conclude that constitutionally protected sexual images of adults causes the adverse secondary effect of unprotected child pornography, which, by definition, it does not. Protected expression does not cause unprotected expression. Child pornography is not an effect—secondary or otherwise—of that expression, like the harms of crime and reduced property values said to be caused by constitutionally protected expression in adult bookstores and adult nightclubs. To suggest otherwise is a non-sequitur. This is not a secondary effects case." There is no question that the record-keeping and labeling laws are content-based, since they apply only to movies and web material whose content is sexually explicit expression. Why both the district court and the Third Circuit panel previously failed to see this is unclear, but now, under the Reed decision, that contradiction has been thrown in their faces by Justice Thomas and the high court majority. "The Supreme Court has confined application of the secondary-effects doctrine to local regulation of adult bookstores and theaters, and nude dancing in nightclubs," Murray and Baumgardner argue, citing several prominent First Amendment decisions includingin  the Child Pornography Prevention Act and Ashcroft v. Free Speech Coalition cases. "It has never applied that theory to any other regulation of sexually-oriented speech—even when the law had as its benign purpose, the protection of children." The attorneys go on to describe why the Renton "secondary effects" doctrine was not applied by appellate courts to several other cases that arguably involved the content of speech, including restrictions on how close anti-abortion protesters can approach women's clinic doors—and not even in Murray's own previous 2257 case, Connection Distributing v. Holder, nor even the original 2257 lawsuit, American Library Association v. Reno. "The courts in both Connection and Am. Lib. Ass’n followed Ward [v. Rock Against Racism]’s approach of examining whether the regulation could be 'justified without reference to the content of the regulated speech,' and whether it was adopted because of disagreement with the message of the speech being regulated—the very bases that Reed found will not justify intermediate scrutiny of a law that is content based on its face," the attorneys' response notes. Indeed, as the attorneys further note, the government could use "secondary effects" to sidestep strict scrutiny in virtually any First Amendment speech case as long as it could argue that, somewhere down the line, the speech being challenged could sometime lead to someone being hurt. "The harm at which a content-based regulation is aimed need simply be dubbed a 'secondary effect' of the speech being regulated to justify relaxing the level of scrutiny due," the attorneys deduce for the court. "Indeed, in Reed itself, simply by characterizing Gilbert’s sign ordinance as one aimed at the secondary effects of driver distraction and visual litter caused by the presence of temporary directional signs, the Court could have invoked that doctrine to justify the use of intermediate scrutiny." All in all, Murray's and Baumgardner's response destroys the government's "secondary effects" justification for 2257—and now it will be up to the Third Circuit to either grant a rehearing based on this new Supreme Court decision, or allow the full Third Circuit to consider it. But either way, it appears as though the useless, invasive and costly 2257 laws are about to be deemed unconstitutional.