Justice Department Files Its Brief In Support of Keeping 2257 Law

PHILADELPHIA, PA—In a brief filed late Friday afternoon with the clerk of the U.S. District Court in Philadelphia, the latest batch of U.S. Department of Justice attorneys assigned to fight the lawsuit by Free Speech Coalition and more than a dozen other plaintiffs against what's left of the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A (hereafter "2257") have filed their brief opposing the plaintiffs' Motion for a directed verdict from Judge Michael M. Baylson that the law is unconstitutional. In the plaintiffs' brief in support of its Motion, which was filed on February 24, First Amendment attorneys J. Michael Murray and Lorraine R. Baumgardner asked the court to take notice of the fact that the Third Circuit Court of Appeals, on rehearing the plaintiffs' First Amendment arguments in light of the U.S. Supreme Court decision in Reed v. Town of Gilbert, after which hearing the appellate judges ruled that, in contrast to Judge Baylson's prior rulings, the plaintiffs' issues should be judged under "strict scrutiny" rather than the "intermediate scrutiny" that had governed the case previously. In the government's new brief, its attorneys argue that the change in level of scrutiny should not affect Judge Baylson's findings of fact, and that 2257 should remain in force. The government's brief essentially claims that 2257 makes no undue burdens on producers of adult content, stating, "the Statutes’ requirements are not that burdensome to begin with, and do not prohibit any speech, also makes it difficult to conceive of any effective scheme that would be less restrictive, as to Plaintiffs... Plaintiffs suggest that child pornography prohibitions are sufficient, but the Statutes were enacted in the first place due to gaps in those laws." The government also claims that the adult industry can't be trusted to verify the ages of the performers it uses because it has no "genuine notion of a uniform 'industry,' much less an established set of standards that every industry member follows." All of that, of course, is false, especially in light of the fact that the government conflates the established adult production community—that is, almost all of the plaintiffs, and particularly the Free Speech Coalition—with every amateur in the country who creates content with their home video system and relies on that relative anonymity to avoid being busted for filming underage subjects—and never have and never will keep 2257 identification records. In pressing its case, the government's brief makes several claims, including that neither the Free Speech Coalition (FSC) nor the American Society of Media Photographers (AMP) represent enough members of their respective communities to have standing to bring "as-applied" challenges to the statutes, "In particular, because the as-applied narrow tailoring inquiry requires an examination of whether an individual producer’s speech was unnecessarily burdened, an 'individualized inquiry' into 'the nature of each member’s speech' and the degree to which it 'is unnecessarily burdened'." In other words, the government is saying that if some non-FSC member were busted under 2257, Free Speech would not have the legal authority to challenge that particular bust, and that therefore, no FSC member should benefit from the age/identity-checking standards that all Free Speech members employ! The government's brief, after claiming that the plaintiffs agree that keeping underage performers from making sexually explicit content is a "compelling government interest," and that the Third Circuit's most recent decision supports that claim, nonetheless spends several pages supporting the idea that it's a worthwhile goal while implying that the industry somehow opposes it. "This compelling interest encompasses the Government’s interest in investigating and prosecuting child pornography violations," the government brief states. "Indeed, the Third Circuit has recognized that the Statutes 'combat child pornography in at least four specific ways' by (1) 'ensur[ing] that primary producers of sexually explicit expression confirm the ages of their performers prior to filming,' (2) 'permit[ting] secondary producers that publish the depictions to verify that the performers were not children,' (3) 'prevent[ing] children from passing themselves off as adults,' and (4) 'aid[ing] law enforcement and eliminate[ing] subjective disputes with producers over whether the producer should have verified the age of a particular performer'." The problem is, 2257 accomplishes none of those objectives. So far, every single underage person who has managed to break into the adult industry, from Traci Lords to Alexandra Quinn, has done so with a fraudulent government-issued ID, and since 2257 does not require producers to be experts at detecting false (much less fraudulently used genuine) government IDs, the only thing government inspectors of 2257 records could do is bust a producer who has accidentally used an underage performer for child pornography, not 2257. So for all its claims that 2257 somehow "fills the gaps" in child porn laws, in fact, it does nothing of the sort. The brief then takes aim at whether 2257 is "narrowly tailored" to achieve its goal of keeping kids out of porn. "Plaintiffs also argue that the Statutes are not narrowly tailored as applied to them because 'a large body of their own work . . . was in no way related to child pornography,'" the government brief states. "However, their assertion that they are subject to the Statutes’ requirements means that they do produce work that, if it included minors, would qualify as child pornography under 18 U.S.C.
§ 2256. In fact, any work that would not qualify as child pornography if it depicted a minor would not be subject to the Statutes in the first place." That's called putting the cart before the horse. The production of adult content is legal in this country as long as A) it isn't obscene, and B) as long as it doesn't include minors. Therefore, the output of the adult industry is perfectly legal—unless the government can prove it used minors, in which case it becomes child pornography. But 2257 doesn't give government the tools to figure out if any particular performer is underage, because no producer in his/her right mind would use an underage performer if he/she knew the person was underage—and how could he/she know that if the minor provided what looked like a valid government ID? The best a 2257 inspector could say is, "This looks like an underage person, yet the ID you have in your 2257 records looks perfectly okay. We'll have to see if this person is underage by using other resources"—just as they would have to do if they found a movie or web content that they believed had a minor in it! The brief then goes on to attempt to debunk other anti-2257 arguments, claiming that keeping 2257 records isn't that expensive or burdensome, a laughable claim, or that only keeping records for performers below a certain (legal) age wouldn't help keep costs down because "producers would face the need to determine, not only whether a potential performer is a minor, but also whether that individual is above or below the age cut-off, whatever it might be." One of the government's main points, and it's the title of one section of the brief, is "Eliminating the Statutes and Relying Solely on Direct Prohibitions on Child Pornography Would Be a Less Effective Alternative"—expect as already noted, it's really the only alternative. The brief takes a similar view on "Relying on Producer Certifications and Unspecified Industry Standards," yet ti fails to make any legitimate argument as to why a producer would want to use an underage performer considering A) there are plenty of young-looking legal performers, and B) to use a minor in an adult production opens the producer up to charges of child pornography and a potential 10-year prison term.  The brief puts for a couple of more arguments, each equally poorly taken—but it will be up to Judge Baylson to sort through it all, and he will have the plaintiffs' uncoming response to the government's brief to help him with that within the next month.