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July 31, 2015

Legalese Column: Limitations on a Statute

This article originally ran in the July 2015 issue of AVN magazine. Click here to read the online edition. Good news is difficult to come by in this industry. But there was some of it of late: the decision of the United States Court of Appeals for the Third Circuit in the Free Speech Coalition’s challenge to 2257. That’s 18 U.S.C. §§2257 & 2257A, in case you have been living under a rock or you are reading your first issue of AVN. The decision is landmark: Free Speech Coalition, Inc. v. Attorney General of the United States, ___ F.3d ___, 2015 WL 2240346 (3rd Cir., May 14, 2015). Rarely is any component of any federal statute struck down. Accordingly, two important points warrant visiting. Point One is the fact that the rarity of striking down a federal statute, even in part, cannot be over-emphasized. It just doesn’t happen very often. Because of that, striking down of a federal statute is the surest path to the United States Supreme Court—and that’s according to Dean Erwin Chemerinsky of University of California Irvine School of Law, one of a small handful of supreme experts about the Supreme Court. Also, the  lower court still may have some work to do. So, this battle should not be considered over just yet. Point Two is to give credit to attorney Michael Murray, an attorney who is as good as exists and a dear friend of this author for over 30 years. Mike is one of those rare people that is wonderful to know—someone with whom to discuss legal theories; join for lunch; work on a legal committee together (Michael and the author share positions on the First Amendment Lawyers Association’s Board of Chair Emeritus and the ACE Legal Advisory Board) or have a drink after work. A super person. The overwhelming uphill battle was that this appellate court already had decided in this same case that the challenge was subject to analysis under intermediate scrutiny, rather than strict scrutiny. That is significant because, while the government has the burden under either standard, its burden under strict scrutiny—generally stated as use of the least restrictive means to serve a compelling governmental interest—is much greater than is the case under intermediate scrutiny, generally described as advancing a substantial governmental interest while not burdening substantially more speech than necessary to do so, yet leaving “ample alternative channels for communication.” Prevailing on the First Amendment challenge, then, was a tall order, especially in view of the fact that the court already had held in its first look at the case that the statute in several ways furthered a substantial governmental interest. After much discussion, analysis of which is beyond the scope of this article, the court rejected the First Amendment claims. In so doing, however, it is significant to note that the court addressed the claim that the statute was invalid because it applied to non-commercial images, particularly the prevalence of “sexting.” While the court found that neither that issue nor the overreaching of the statutes [2257 and 2257A] by application to oldsters invalidated the statutes due to the many legitimate applications of the statutes, the discussion of application to non-commercial activities is of interest. Because of some language from Congress in enacting and amending 2257 and conflicting language in the regulations, there has been a question over the years as to whether 2257 applies to non-commercial activities. This opinion makes clear that it does. What gained some traction in the lower court and gained one hundred percent traction in the appellate court was the claim that 2257 inspections consisted of unauthorized, warrantless searches under the Fourth Amendment. The trial court had struck down the inspection provision to the extent that the 2257 records were located in the record-keeper’s private residence. The Court of Appeals went further. The plaintiffs overcame a number of the government’s efforts to beat back the Fourth Amendment challenge, beginning with a rather technical defense of lack of something called “justiciability”: the government claimed that none of the plaintiffs had shown a threat of injury because there is not an inspection program in place these days. However, it rarely carries the day when the government “promises to be good”—and this was no exception. The court made short work of that argument, noting that the requirement that the plaintiffs be at the ready to face unannounced inspections, meaning undergoing the costs of doing so, was a real harm. Moreover, the existence of past enforcement is enough to put a chill in everyone. Getting to the meat of the Fourth Amendment claims, the court addressed the government’s claim that that the porn production industry was one of “[c]ertain industries [that] have such a history of government oversight that no reasonable expectation of privacy could exist.” However, comparing some of those actually heavily regulated industries—funeral directors, gaming activities and automobile junkyards—the court found that adult motion picture production did not have comparable characteristics, such as licensing and registration. Addressing the issue of whether unannounced inspections were really necessary, the government indeed shot itself in the foot with its own evidence: “Here, the Government has all but admitted that warrantless searches are unnecessary. As the District Court found, both FBI agents testified that it was highly unlikely that a producer could assemble Section 2257 records on short notice. ... And we agree with law enforcement’s testimony that the destruction of evidence is not a real concern, given that to do so would only compound any criminal violation of the Statutes. Further, law enforcement here conducted nearly one third of its inspections under the Statutes after providing notice and without any reports of records fabrication. Thus, the record establishes that the type of records required to be maintained, given their scope as well as the need for indexing and cross-referencing, could not easily be recreated on short notice and violations concealed.” So, what does this all mean? If the government cannot inspect the records, how can 2257 be enforced? Several ways. In the first place, the court did not rule out searches with a warrant. Warrants can be obtained using traditional methods of obtaining probable cause, including inside information. Additionally, the court leaves the door open for inspections under more limited circumstances: “Under these circumstances, ‘inspection warrants could be required and privacy given a measure of protection with little if any threat to the effectiveness of the inspection system.’ Because warrantless searches are unnecessary, there is no need to sacrifice even administrative warrants and their accompanying ‘assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria.’” Finally, of course, if the required disclosure statement does not appear on the relevant images, that standing alone is evidence of a violation. As noted, this is far from over. Look for the government, and perhaps the plaintiffs as well, to ask the court for rehearing en banc (i.e., by all of the judges of the court, not just a panel of three) and, failing that, to take this to the Supreme Court. Further, look for amended regulations, eliminating surprise inspections and otherwise attempting to conform the ruling. Stay tuned …

 
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