Justice Department Appeals FSC's 2257 Victory To 3rd Circuit

PHILADELPHIA—Today, a team of attorneys from the U.S. Department of Justice filed an appeal from the August 3 judgment issued by U.S. District Judge Michael M. Baylson in the lawsuit which pitted Free Speech Coalition, the American Society of Media Photographers and 10 remaining individual plaintiffs against the Attorney General of the United States.“As we expected, the government has appealed Judge Baylson’s ruling striking down major parts of the 2257 regulations as unconstitutional under the First and Fourth Amendments, and permanently enjoining the government from enforcing those parts of the statutory scheme," said Eric Paul Leue, executive Director of Free Speech Coalition. "FSC has a right to appeal as well, and we will continue to defend the rights of legal producers.”The suit sought to invalidate the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A ("2257"), and their enabling regulations. Judge Baylson's ruling, which came after much input from both parties, gave the plaintiffs almost everything they wanted from the suit, stating in part, "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."
As AVN previously noted, "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."However, it is noteworthy that in issuing his ruling, Judge Baylson had essentially accepted the government's argument that Free Speech Coalition did not have standing to make "as-applied" challenges to 2257 on behalf of its members or of the industry in general, though he found that the individual plaintiffs could make such challenges. Nevertheless, the judge agreed with the argument put forth by plaintiff' attorney J. Michael Murray regarding such challenges, which was contained in law professor Richard H. Fallon Jr.'s Harvard Law Review article. That argument had found favor with the U.S. Supreme Court, that there was nothing stopping a court which had found a particular law inapplicable "as applied" to some plaintiffs, from finding that law similarly invalid as to all plaintiffs similarly situated—which is what Judge Baylson did in his final judgment. It is that conclusion, that Free Speech did not have standing to mount such "as-applied" challlenges, which FSC might argue in its own appeal of the ruling—but if it intends to do so, it must file its cross-appeal within 14 days.In any case, it is now up to the Third Circuit Court of Appeals to establish a briefing schedule, which should occur within 30 days of the last appeal being filed. The Third Circuit will then amass all of the filings and rulings that have taken place in the case so far, and after having received all of that data, will tell the attorneys for both sides when their formal argument briefs must be filed. That whole process could easily take six months or more to be completed, at which point the Third Circuit will schedule oral arguments on the petition(s)."We fully anticipated that the government would file an appeal from Judge Baylson's ruling, since that ruling struck down most of the 2257 law under the First and Fourth Amendments to the Constitution, and restrained the government from enforcing the law against the adult industry," Murray told AVN.The adult industry's fight against 2257, spearheaded by Free Speech Coalition, has been ongoing since 2005, and has cost the industry more than $1 million in legal fees and related expenses—and the appeals process will only add to that total. Knowing the importance to the industry of defeating the onerous 2257 laws, Free Speech has appealed to industry members for donations to that ongoing effort. Such donations may be made here.