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August 06, 2018

VICTORY! 2257 Judgment Is Almost All We Could Ask For

PHILADELPHIA—Early Monday morning, Judge Michael M. Baylson released his Final Judgment and Order in the long-running federal record-keeping and labeling case, better known simply as "2257." The judgment gives the adult industry nearly everything it has asked for in overturning the law and its implementing regulations. While the judgment, which was posted earlier today, finds in favor of the government on the facial overbreadth challenge argued by plaintiffs Free Speech Coalition and the American Society of Media Photographers as well as 10 individual plaintiffs, as well as the "as-applied" claims of the two organizational plaintiffs, Judge Baylson finds that both 2257 and its more mainstream counterpart 2257A are unconstitutional as applied to secondary producers, and that the law's arcane and detailed record-keeping requirements are similarly unconstitutional under the First Amendment as applied to all plaintiffs, and "The Court hereby permanently enjoins Defendant, his agents, servants, employees, attorneys, and other persons acting in concert or participation with him from enforcing these statutes and regulations." A nearly identical finding was entered regarding the labeling requirements for sexually explicit material. Moreover, except in the case of primary producers—those who actually shoot the material and interact with the performers— the part of the law that mandates criminal penalties for failure to perform age and identity verification of performers is also struck down as unconstitutional. The judgment reiterates that the court had previously found the warrantless search and records availability aspects of 2257 unconstitutional under the Fourth Amendment. And finally, each side must pay for its own costs and expenses. In short, the only people who can still be held liable under 2257 are primary producers who fail to check performers' ID documents and/or fail to verify their ages, and the court refused to strike down the criminal penalties for those who do fail to check. AVN will be examining this decision in further detail later today—but be warned: It is expected that the government will appeal Judge Baylson's decision. However, as it stands now, the government may not enforce any parts of 2257, 2257A or the implementing regulations against anyone except primary producers who fail to check ages and IDs. Nevertheless, since the goverment is expected to appeal, industry attorneys have advised that producers continue to follow their existing 2257 record-keeping and labeling regimen until the case is finally settled.

 
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