PHILADELPHIA, PA—At 9 o'clock this morning, the three-judge panel of the Third Circuit U.S. Court of Appeals, before beginning consideration of the appeal in Free Speech Coalition, et al v. Holder, made what observers described as an unusual announcement.
"Don't worry about the time," said Judge Marjorie A. Rendell. "We'll give you all you need to make your case."
She wasn't kidding. The schedule, which had allotted approximately 15 minutes for First Amendment attorney J. Michael Murray to argue for reversing the dismissal of FSC's lawsuit to have 18 U.S.C. §2257, the federal recordkeeping and labeling law, declared unconstitutional, and gave a similar period for Assistant U.S. Attorney Anne M. Murphy to oppose that action, was extended by at least ten minutes for each side—to the point that during the middle of Murray's presentation, when the light on the podium turned red, usually signaling that the attorney's time to speak was up, one of the judges instructed the court clerk to turn it green again.
To anyone familiar with the appellate court system, that was considered a good sign.
"Both sides took far, far more time than was allotted," observed Reed Lee, a constitutional expert and Free Speech Board member. "I think the oral argument clearly shows that the panel is engaged with the challenge, and the challenges that have been made. That is, they plainly came prepared; they understand the thrust of many of the challenges and they took the time that they believed was required to study a challenge to federal statutes that has some gravity. I mean, they plainly thought it was worth taking an unusual amount of time in oral argument to assess the challenge."
Still, it was hard to get that impression initially, when the first question out of Judge D. Brooks Smith's mouth was whether Murray still intended to press the claims—mostly First Amendment issues and whether 2257 could be considered a prior restraint on speech—contained at the end of his appellate brief?
Judge Smith, a George W. Bush appointee, it will be remembered, presided over the panel that overturned District Court Judge Gary Lancaster's dismissal of the obscenity indictments against Rob Black, Lizzy Borden and their company, Extreme Associates.
But no, Murray replied, those claims were still important to the case, though he would not focus on them during the argument.
What Murray would focus on, however, was the appellants' claim that Judge Michael Baylson (another Bush appointee) was premature in dismissing FSC's complaint at the district court level, since there were a variety of issues that couldn't be hashed out entirely through legal arguments, but required the making of a trial record, such as the fact the real problems exist that affect real people in trying to comply with the substantially-flawed law. Murray analogized FSC's complaint to the lawsuit several years ago over whether the Playboy Channel's cable signal "bled" over to other cable channels, and therefore should be required to be heavily scrambled or otherwise blocked during hours when children would be likely to be watching cable TV. Murray noted that without testimony from experts that the "signal bleed" was essentially a non-existent problem, the court would have been trying to decide the case in a factual vacuum.
When Judge Anthony Joseph Scirica pressed Murray regarding what evidence he would adduce at trial, Murray first responded that he would want to show the effects that 2257 has on private individuals who take sexually explicit photos in their own home and may possibly post them on the internet in order to meet like-minded couples—all of which activity would require them to keep 2257 records and be available at least 20 hours per week in case FBI inspectors wanted to look at the records—an observation that later led to a long discussion about the warrantless searches that are authorized under 2257.
When Judge Smith pressed him to quantify the reach of the statute, Murray noted that there were approximately 13 million people posting to AdultfriendFinder.com, a swingers' site, the vast majority of whom would be affected by 2257—and that AdultFriendFinder was just one of several such similar sites. In his response, Murray was also able to comment on the overbreadth (or at least over-inclusiveness) of the law, since it sweeps in vastly more protected speech (adults making sexually explicit content for adults) than it does unprotected speech like child pornography, and that therefore, 2257 should be struck down at least for its lack of narrow tailoring, a requirement for most laws that affect First Amendment-protected content.
The judges—notably Judge Rendell—seemed to well understand that child pornographers don't keep 2257 records, since they would be automatically incriminating, or would fake them, but Murray went even further, noting that 2257 was "designed" to affect protected speech like adult porn, by both steering producers to choose performers who didn't look young, and by implicitly suggesting that they choose to make content that didn't imply that younger performers were involved.
Murray also pointed out that thanks to 2257A, mainstream producers didn't have to worry about such youth-oriented considerations, since all they had to do was file a letter with the Attorney General noting that they keep certain standard records on their performers, thus exempting them from both FBI inspections and 2257 notices on their DVD boxes. Murray noted that many adult producers keep exactly the same records on their actors, but that the 2257A exemption was not available to them—a fact which Murray said was discriminatory. Indeed, Judge Rendell seemed to agree, noting that adult producers are already highly regulated, and seemed to opine that 2257A should be available to them as well.
Judge Scirica then inquired as to why the "explanatory" discussion in the Federal Register that precedes publication of the statute doesn't limit the law itself? Murray noted that that discussion was not incorporated into either the law itself nor the regulations promulgated by the Justice Department as guidelines on how to follow the law. He compared it to the law which prohibited the sale of dog-fighting videos, which the Supreme Court struck down in U.S. v. Stevens. Normally, judges are required to interpret any law passed by Congress in ways that would make it constitutional, but Murray observed that in the Stevens case, even the Supreme Court found that to be an impossible task, and so struck down the law. He liked that law to 2257, and noted that the high court did not believe the Justice Department's representations that it could be trusted to "do the right thing" in interpreting that law—just as the Justice Department has repeatedly argued that it could be trusted not to bust amateur explicit content producers like swingers. Murray said that in fact, there is no way to tell what content the government would exempt if left on its own—and that in any case, administrations change and future attorneys general might easily differ from the current regime on how to enforce 2257.
But when Judge Scirica asked why the Third Circuit shouldn't apply the same "remedy" that the Sixth Circuit had recommended in the Connection Distributing case when it upheld the 2257 statute, Murray was able to articulate one of the main issues the appellants have with the 2257 law: It shifts the burden from the prosecution, which normally would have to prove that minors were used in the creation of the content, over to the defense, which would then be forced to prove that no minors were used. This question also sparked the discussion of the Fourth Amendment implications of 2257's authorization of inspectors to enter the premises where the content was produced—which in the case of swingers would be their own homes—without a judge having signed a warrant attesting to the inspectors' "probable cause" for the search.
Later, when the issue of third-party recordkeepers was brought up by Judge Scirica, Murray noted that many couples who make their own sexually explicit content might not want third parties to see it, since the law would require the third party recordkeeper to attach a copy of the work in question to the 2257 identification documents. Moreover, he asserted that adult producers have always kept identification documents on their performers for various purposes (including to avoid charges of child pornography), but until 2257, the producers didn't face prison time if those documents were not kept in exactly the right order.
Murray's argument ended with his response to Judge Scirica's question of whether the overbreadth of the statute wasn't simply a legal question rather than a factual one? Murray suggested that the appellate court could indeed find on its own that the statute was overbroad, but failing that, the appellants would need to develop a factual record documenting the statute's overbreadth—exactly the record the trial court had denied them through its summary judgment dismissal.
When it came Murphy's turn at the rostrum, she immediately asserted that Judge Baylson's order dismissing the lawsuit was procedurally correct, saying that previous cases—most notably the American Library Association case from the early '90s as well as the 2009 Connections Distributing Sixth Circuit en banc dismissal had established the government's interest in preventing adult content producers from using minors.
But when Judge Rendell asked how 2257 impacts child pornography, the best Murphy could do was refer to the Meese Commission's finding that young-looking performers could be minors, and that the 2257 records help in establishing the adulthood of such performers.
But, Judge Rendell pressed, does being forced to keep such records stop child pornography? No, Murphy admitted, though it's unclear whether Murphy agreed that adult content producers are not child pornographers, again harking back to the Meese Commission's findings.
But when Judge Rendell suggested that having 2257 records "aids in the prosecution" of child pornographers—in a sense, a trick question which would lend credence to the appellants' burden-shifting argument—Murphy disagreed, saying the statute was more intended to make sure children weren't used in adult productions, and that the "ability to track" identification documents would help to keep the adult industry from using minors in sexually explicit content. She noted that the statute wasn't directed at 10-year-olds or babies; just to adults who looked as if they might possibly be children.
But with Murray's arguments apparently in mind, Judge Rendell then asked how the effective reach of 2257 could not be assumed to be less that the statute itself says? Murphy tried to answer that the statute only applied to commercial speech, but Judge Smith asked where she could find that limitation in the statute? The correct answer is, it's not there, though it is in the "explanatory" discussion—which, legally, doesn't count, but Murphy continued to assert that the statute could be read so as to be constitutional. She also asserted that explicit images created by couples that never leave their home would not be targeted, but when Judge Scirica pointed out that the definition of "performer" in the law is not limited, Murphy argued that if this was of concern, the court should affirm the statute and wait to see how such couples would actually be affected by the law, and then deal with the "as-applied" challenges such people would file. This brought a big laugh from the several legally-knowledgeable spectators, and caused Judges Rendell and Smith to exclaim, "Really?"
Murphy continued to insist that Congress had the adult industry in mind when it passed the statute, but when Judge Rendell asked how law enforcement would handle searches of private couples who had taken explicit photos or videos of themselves, noting that it would be those people's homes that would be searched, Murphy responded that that would be a valid administrative search. But when pressed by the judge as to why such a search had to be warrantless, Murphy claimed that the purpose was to make sure people kept the records in the first place, and that some burdens on speech are "unavoidable."
Judge Scirica then came at the issue from the other direction, asking why Judge Baylson's dismissal of the lawsuit didn't require that a factual record be made of the claims? Murphy argued that the statute had been in effect for over 20 years (though she didn't mention that not a single inspection had occurred until more than 15 years after the statute's passage) and that the court should not take it upon itself to invalidate an act of Congress—and that in any case, as-applied challenges would limit the statute's reach. She asserted that taking discovery in the case would be difficult and that she was "not running away" from discovery but that there was simply no basis upon which to do it.
The final question came from Judge Smith, who asked if a person who was obviously an adult and who made an explicit video of just him- or herself and posted it on the internet would be subject to the requirements of 2257? Murphy responded that if the video contained "lascivious exhibition of the genitals" and not simple nudity, that yes, the person would be required to keep the 2257 records because once the video was on the internet, "It's out there."
Finally, it was Murray's turn to give a short rebuttal, during which he pointed out some of the differences between the Connection Distributing case and the FSC lawsuit, that warrantless searches of 2257 records aren't needed because, essentially, the records aren't going anywhere, and he reiterated that 2257 doesn't apply just to commercial speech—but the panel gave him just the three minutes he asked for, apparently because they felt the issues had been well-argued already.
However, one more hopeful sign emerged at the end of the argument, when the judges specifically asked the court reporter to prepare a transcript of the proceedings to help them reach a decision—a sign, one observer said, that the judges were taking the case very seriously and wanted their decision to reflect that thoroughness.
"I think most attorneys who are familiar with the process will tell you that oral arguments don't usually go this way," Lee commented afterwards, "and that the government usually gets considerably more deference than was shown here, and that the judges don't seem as obviously troubled about features of a federal statute, so I think those are things worth exploring.
"I think when the transcript comes out, people will be able to read how the argument went," he continued. "People can study the briefs of the case. I think the surprising thing about the argument was that the judges were plainly engaged enough that they readily granted both sides an unusual amount of time to spend on the case. Federal judges are usually prepared, they usually know the issues, and these judges were that, but they seemed engaged enough to want the parties' responses to their questions anyway."
It is unknown when the panel will issue its decision, which will probably come before the end of the year—but in the meantime, it appears that as long as this case is still before the courts, 2257 inspections will continue to be halted, and no prosecutions brought. But if the lawsuit is dismissed, the industry had better buy plenty of umbrellas for the shitstorm that will surely follow.