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July 11, 2018

Attorneys In 2257 Case Submit Proposed Judgment Orders

PHILADELPHIA, Pa.—Late last week, J. Michael Murray, who represents Free Speech Coalition and 14 other plaintiffs in the nearly decade-old battle against the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A ("2257"), as well as a team of Justice Department attorneys headed by Kathryn Wyer, each filed their own versions of what Judge Michael M. Baylson's final judgment Order should look like in the case. Judge Baylson had released his preliminary findings in the case in late May, making several rulings on the legality of both the law itself and the law's implementing regulations, and asked both sides to essentially take those rulings and form them into a "Judgment" that would serve as his final judgment on the case. He gave both sides about three weeks from his May 21 ruling to come up with agreed-upon verbiage, though he later extended that time period to early July. He also ordered that if the sides could not agree on the wording of the "Judgment," that each submit proposed language separately. Those proposed "Judgments" were submitted on July 6 and 7, and while each attempts to encapsulate Judge Baylson's thoughts, there are several important differences between the two documents. Among Judge Baylson's findings in May were that "secondary producers" such as adult retailers, who would normally have no contact with the performers appearing in XXX content, need not keep identification documents on the performers, though "non-commercial producers" could still be required to do so; that all performers in actual or simulated adult content must provide age-identifying documentation to producers of the material; and that although the requirement that all such material be labeled as complying with the 2257 laws, the requirements regarding what such labels must say and other minutae in the law and regulations must be revamped in light of the judge's finding that the language failed the "strict scrutiny" test. With all that in mind, the attorneys for both sides submitted their proposed "Final Judgment Entries." First to offer his ideas was Murray, who on July 6 noted, as Judge Baylson had ruled, that neither the Free Speech Coalition nor the American Society of Media Photographers had standing to make "as-applied" challenges to the 2257 laws and regulations on behalf of their memberships, though the individual plaintiffs could do so. He also recognized that it was the Court's opinion that the 2257 laws and regulations were not unconstitutionally overbroad under the First Amendment, and that the requirement that "primary producers" of adult content could legally be required to verify the ages of performers of the material. That said, Murray's Final Judgment Entry would have the Court recognize that 2257 and its regulations are unconstitutional as applied to secondary producers; that the sections of the law and regulations requiring that performer identification records be kept for a specific time period in a specific manner and specific location are unconstitutional; that the current language in the laws/regs for what a 2257 label must look like and say are also unconstitutional and must be simplified; and perhaps most importantly, that the criminal penalties for violating any of the 2257 requirements are likewise unconstitutional (though that restriction also appears only to apply to secondary producers). Murray's submission also notes that the Court has previously found the warrantless records inspections allowed under the law are unconstitutional under the Fourth Amendment, and that the government is barred from such warrantless searches. In essence, Murray is asking the Court to issue a temporary injunction preventing the government from attempting to implement any of the challenged sections of the law going forward, which would include during the process of any appeal that either side may take from Judge Baylson's ruling. Finally, with so much of the 2257 laws and implementing regulations having been found unconstitutional, the plaintiffs have asked the Court to assess all of the costs of the trial, legal filings and time spent by attorneys on the case to be paid by the government. But while some of the government's language in its proposed "Judgment," filed July 7, is similar, it is interesting that the word "unconstitutional" appears nowhere in the government's document. Rather, it admits that some sections of the 2257 laws and regulations "may not validly be applied" to various of the plaintiffs. Beyond that, in a "glass is half full" type of statement, the government early on notes that Judge Baylson had rejected the plaintiffs' facial challenge to the law, with the judge having ruled that while parts of it fail to pass constitutional muster, the overall idea of Congress to attempt to prevent minors from performing in explicit content was a valid, constitutional one. (That argument, of course, is simply wrong.) Similarly, although the judge upheld the as-applied challenges from the individual plaintiffs, the government proposal instead notes that such challenges were rejected regarding the organizational plaintiffs. Beyond that, regarding those individual plaintiffs, the government admits that to the extent they are secondary producers, the 2257 laws and regulations "may not validly be applied" to them, nor can the record-keeping requirements and the "associated criminal prohibitions" and penalties, or the labeling requirements. One welcome paragraph: "Defendant is ENJOINED from enforcing 18 U.S.C. §§2257 and 2257A and their implementing regulations, 28 C.F.R. §§75.1 et seq., against the individual plaintiffs in a manner inconsistent with the above-stated rulings with respect to the individual plaintiffs’ as-applied claims. The Court enters JUDGMENT in FAVOR of the individual plaintiffs and AGAINST defendant with respect to those aspects of the individual plaintiffs’ as-applied claims identified above." Less welcome is the paragraph immediately following the one above: "With respect to all other aspects of the individual plaintiffs’ as-applied claims under the First Amendment, including the individual plaintiffs’ challenge to the age verification requirements of 18 U.S.C. §§ 2257(b)(1)-(2), 2257A(b)(1)-(2) insofar as the individual plaintiffs act as primary producers within the meaning of 28 C.F.R. § 75.1(c)(1), and the individual plaintiffs’ challenge to the imposition of criminal penalties pursuant to 18 U.S.C. §§ 2257(i), 2257A(i) for violation of those requirements, the Court enters JUDGMENT in FAVOR of defendant and AGAINST the individual plaintiffs." That last paragraph appears to be at odds with Judge Baylson's original ruling. "Plaintiffs contend the punishments contained in the statute are unduly harsh—one could receive five years in prison for a simple record-keeping or labeling violation," he stated in his ruling. "Moreover, the acts rendered unlawful do not precisely address the problem for which the Statutes were ostensibly enacted, the protection of minors from being used in child pornography. Because Section 2257 mandates prison time for record-keeping and labeling violations regardless of the age of the performers—without imposing its requirements on, or addressing its penalties to, minors—the only way that the Statutes address child pornography is if they have deterrent effect on individuals considering engaging in child pornography." Which, of course, they don't. As is the case with most federal court rulings, Judge Baylson has no deadline by which he must issue his ruling, though at this late stage of the proceedings, it could come very soon. After that ... who knows? Depending on what he says, either the plaintiffs or the government could appeal once again to the Third Circuit, though going by that body's previous ruling, it doesn't appear that whatever arguments the government could make would have much sway.

 
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