PHILADELPHIA—Relying heavily on the U.S. Department of Justice's (DOJ) reply to Free Speech Coalition's (FSC) Motion to Reconsider his July 27 decision throwing out FSC's lawsuit against the federal recordkeeping and labeling laws, 18 U.S.C. §§2257 and 2257A, Judge Michael Baylson again squelched the hopes of adult content producers to be free of the onerous regulations by denying the Free Speech motion.
"As the Third Circuit has made clear, '[a] proper motion to alter or amend judgment must rely on one of three major grounds: (1) an intervening change in controlling law; (2) the availability of new evidence not available previously; or (3) the need to correct clear error of law or prevent manifest injustice'." Judge Baylson wrote in his Order, which was filed on Friday. "In their Motion, Plaintiffs do not cite this legal standard controlling motions under Rule 59(e), and do not specify any of the 'three major grounds' as providing the basis for their request to alter or amend the judgment."
Compare that with the Justice Department's Memorandum in Opposition to Plaintiffs' Motion to Alter or Amend Judgment Pursuant to Rule 59(e), which reads, "A motion pursuant to Rule 59(e) to alter or amend a final judgment 'may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.' In light of the judicial interest in the finality of judgments, it is 'improper ... to ask the Court to rethink what [it] had already thought through—rightly or wrongly.' Thus, '"[a] proper motion to alter or amend judgment must rely on one of three major grounds: (1) an intervening change in controlling law; (2) the availability of new evidence not available previously; or (3) the need to correct clear error of law or prevent manifest injustice."' Plaintiffs' memorandum in support of their Rule 59(e) motion fails to identify any of these three grounds as the basis for their motion." [Citations removed here and below]
The decision, of course, completely ignores the substance of FSC's Motion, which had asked the court to reconsider the fact that, essentially, 2257 and 2257A seek to shift to the defendant the burden of proving that a particular sexually explicit work is not child pornography, and preemptively make it illegal to release the material commercially even if everyone involved were clearly an adult unless the 2257 recordkeeping burden had been met, and the location of such records identified on the material's packaging or web content page.
As FSC's Motion to Reconsider made clear, the burden-shifting aspect of 2257 was not a part of Judge Baylson's original Order granting the government's Motion to Dismiss FSC's complaint, and focused on the fact that even under the court's ruling that 2257 was only subject to "intermediate scrutiny" analysis, 2257 fails the "narrow tailoring" test in that it requires recordkeeping for the overwhelming amount of adult industry-produced material that is inarguably child-free, thereby making the statutes unconstitutionally over-inclusive.
The government's Memorandum in Opposition doesn't totally ignore the argument, and in fact actually makes FSC's case for it.
"As the Court properly recognized," the DOJ Memorandum argues, "the universal application of these requirements to all depictions of sexually-explicit images that, if made using children, would constitute child pornography—regardless of the apparent age of a performer and regardless of a producer's views about the artistic or social value of the visual depiction at issue—makes perfect sense. The uniform nature of the scheme prevents subjective determinations from undermining the effectiveness of the requirements." [Emphasis added]
The key, of course, is "if made using children." Adult productions aren't made using children, and therefore are presumably protected under the First Amendment from, among other things, the exact "prior government restraint" (censorship) that the 2257 requirements impose—and if the government wants to claim that a particular work was made using children, it is the government's burden to prove that allegation beyond a reasonable doubt.
But it's the lack of minors in adult industry content that the government Memorandum goes out of its way to avoid.
"Plaintiffs suggest that, in reaching these conclusions, the Court has 'overlooked a subtle but critical point'," the Memorandum states. "However, plaintiffs do not identify any genuine distinction that the Court has missed, 'subtle' or otherwise. Instead, they simply mischaracterize the governmental interest at issue and then argue that the 2257/2257A requirements do not serve a legitimate governmental interest. Specifically, plaintiffs variously state that the governmental interest at stake is the interest in 'requiring producers to prove that their expression is not child pornography,' or 'having all producers establish that their expression is not child pornography, regardless of the value of the expression, the apparent age of the performers, or any other matter,' or 'suppressing pornography depicting actual children.' But defendant has never attempted to characterize the relevant governmental interest in these terms. Rather, as the Court recognized, the relevant governmental interest is the interest 'in protecting children from [the] sexual exploitation' that occurs when they 'are used in the production of depictions of actual or simulated sexually explicit conduct'."
But if adult content cannot be released into the stream of commerce without possibly reams of paperwork that producers cannot even be required to authenticate allegedly recording the performers' ages, how is that not an attempt to "establish that their expression is not child pornography"? And when the government has not gotten one single indictment charging that a minor had appeared in an adult industry production in more than 20 years, how is that not evidence that children don't appear in adult industry productions? And if 20-plus years worth of industry videos, DVDs and web content without minors isn't evidence that children are not performing in adult industry content, how can the government argue that the voluminous required recordkeeping is in any way "'protecting children from [the] sexual exploitation' that occurs when they 'are used in the production of depictions of actual or simulated sexually explicit content'," especially since, if for no other reason, the fear of being indicted under existing child pornography laws is felt by all industry producers?
So again, if the government adopts, as it does in its Memorandum, Judge Baylson's position that "the artistic or social value of a given depiction, or the duration of that depiction, does not eliminate the potential harm suffered by a child who may be used in the production of that depiction," why isn't the evidence that children have not been used in adult industry productions for more than 20 years except when three of them presented IDs that would have satisfied 2257's requirements not evidence that the 2257 requirements are not only over-inclusive but in fact completely useless?
The DOJ also attempts to take FSC's original lawsuit and briefing to task for allegedly not raising the "secondary producer" argument during the "extensive briefing" that took place prior to Judge Baylson's July 27 decision, but FSC's point has been that while the subject was raised, it was a secondary issue to the main argument that 2257 and 2257A are not narrowly tailored, as set forth more fully in the Motion for Reconsideration.
Indeed, as the plaintiffs state at the beginning of their Reply Memorandum in Support of Plaintiffs' Rule 59 Motion, "In support of the instant motion, the Plaintiffs focus exclusively upon their most fundamental constitutional challenge. That argument is that although the Government has a substantial (indeed compelling) interest in suppressing child pornography, the challenged statutes are not narrowly tailored to that interest because they substantially burden so much expression which is not child pornography (and which thus remains constitutionally protected), and noting that since actual child pornography is the proper target, a substantial portion of the challenged statutes’ burden on speech does not serve to advance the Government’s permissible goals). On the other hand, the challenged statutes are narrowly tailored to a governmental objective: making those responsible for disseminating sexually explicit expression—primary producers, secondary producers, and distributors—prove (or "ensure") that it is not child pornography; but that interest is illegitimate because it is forbidden by the First Amendment."
The main thrust of FSC's original Motion for Reconsideration was the subtle shift from the government's legitimate interest in protecting children from sexual exploitation in adult productions (which the Reply Memorandum refers to as the "basic interest") to a different interest: "[E]nsur[ing] that the individuals depicted in their publications are of age," which the Memorandum labels as the "derived interest."
"The Government assumes that it need do nothing more than draw a sensible line between the basic interest and the derived interest and then demonstrate narrow tailoring with respect to the derived interest," the FSC Memorandum argues. "But this is precisely what the Supreme Court has always cautioned against. The Government overlooks the requirement—an express part of basic constitutional law for very nearly two hundred years—that its ends as well as its derived interests must not only be 'plainly adapted' to its basic interest but also 'not prohibited.' That is, the derivation from basic interest to derived interest must not only be sensible, it must also be permissible. And that is where the Government's derivation fails in this case. ... Thus, far from addressing, let alone refuting, the basic problem identified by the Plaintiffs here, the Government’s response—once again—demonstrates that problem."
The Reply Memorandum then recites part of the long history of such misunderstanding of the problem by almost every court that's considered 2257, concluding, "In fact, each and every respect in which the Government claims the challenged statutes serve its basic interest (permitting secondary producers to ensure that expression is not child pornography, preventing those who did not create expression to disclaim knowledge of its origin, preventing producers from claiming that they did not create expression), focuses directly on the expression (rather than upon the process of creating that expression) and more specifically on who must establish whether or not that expression depicts children. The challenged statutes thus further the Government basic interest only by the indirect and impermissible intermediate step of altering a fixed constitutional presumption. ... The Government must act only through constitutionally permissible means in pursuing its goals, no matter how weighty; and that it has failed to do here, precisely as it has failed to do in the past."
The Reply Memorandum then goes on to support the suggestion the plaintiffs made in the Motion for Reconsideration: That the voluminous recordkeeping required by 2257 be abandoned, and in its place require that the person most directly dealing with the adult performers make a checklist noting that he/she has looked at each performer's photo ID and checking off each performer as his/her ID has been presented, then filing that checklist with the other documents specific to the production in question—and without the five-year prison term and large fines attendant to failing to keep 2257 records in the approved order, in the approved location and with the approved details required by 2257 and 2257A.
"The Plaintiffs agree that a such a limited rule—imposing only de minimis burdens before expression is created—would not run afoul of the First Amendment’s presumption that expression is protected," the Memorandum concludes.
The Memorandum then goes on to challenge the government's claim that plaintiffs' objections to 2257 primarily relate to secondary producers.
"That a true primary producer might be bothered to check each and every performer’s identification document in order to prevent the inadvertent creation of child pornography does not justify the burdensome and Byzantine record keeping requirements imposed on him or her," the reply Memo states. "Nor, more importantly, does it justify restricting the expression itself, once created, in the primary’s hands any more than in anyone else's."
The Reply Memorandum goes on to point out the many instances where the "basic interest" has been argued in each of plaintiffs' challenges to 2257, but not before taking the government to task for suggesting that Judge Baylson need not deal with that basic interest any further.
"It is unclear, except for the very short term, what the Government hopes to accomplish by its waiver argument," the Memorandum states. "If it were to succeed in avoiding the issue here, it will face it on appeal; and even if it were to succeed in avoiding it there, the Government will eventually have to deal with it in the next unavoidable challenge to these federal statutes. Since neither the Government nor this Court can banish a constitutional argument not yet squarely decided, even the Government's own longer term interest would seem to favor adjudication here. This case has attracted the attention of many amici, and this Court has already immersed itself in the surrounding constitutional analysis. Whichever side is ultimately disappointed here is likely to take the issue up on appeal. The Plaintiffs thus most respectfully submit that it is particularly appropriate that this Court weigh in on the essence of the Plaintiffs’ fundamental constitutional challenge."
As seen above, however, Judge Baylson disagreed.
"Plaintiffs mischaracterize the Court’s analysis and conclusion in this regard," Judge Baylson unsurprisingly wrote. "As noted above, the Court identified the prevention of the sexual exploitation of children in the production of sexually explicit material as the significant government interest served by §§2257 and 2257A, and undertook the narrow-tailoring inquiry with that interest in mind; Plaintiffs may disagree with the Court’s determination that the statutes are narrowly tailored to that interest, but contrary to Plaintiffs’ assertion, there was no shift in the nature of government interest in question over the course of the Court’s intermediate-scrutiny analysis."
That statement, of course, betrays a complete misreading of both the original Motion for Reconsideration and the Reply Memorandum.
"Plaintiffs stress that the statutes 'reverse th[e] presumption [that expression is constitutionally protected] by criminalizing expression simply because it is not provably protected'," the Court states. "The Court, however, does not understand the statutes to have any such effect. The statutes impose criminal penalties for the failure of certain producers of sexually explicit material to abide by the statutes' age-verification requirements in the production of that material; the statutes do not, as the Court has explained, criminalize any form of expression, nor do they cause, or presume, any protected expression to be unprotected."
Of course they do! No adult retailer in the U.S. can legally sell a DVD unless it contains the required 2257 label, and no producer can legally affix the 2257 label to his/her product unless he/she has the age-verification records required to be kept in the legally-approved order by the person identified on the label at the place indicated on the label. Once again, without the 2257 records and label, the DVD cannot legally be sold!
But though Judge Baylson castigates the plaintiffs for not proposing their 2257-alternative "checklist" system before filing the Motion for Reconsideration, he disfavors it anyway.
"The Court has found that the statutes—including their scope, their penalties, and their application to both primary and secondary producers—satisfy this standard," the judge claims. "[T]he fact that Plaintiffs can now conjure a potentially less restrictive alternative to the statutes does not undermine this determination."
The judge attempts (and fails) to undermine some of the plaintiffs' other arguments, but the sum of his latest Order is clear: Free Speech Coalition and the other plaintiffs will never prevail in his court, no matter what arguments they mount.
And that just leaves one alternative.
"Although the Rule 59 motion was denied, it served the designed purpose of highlighting certain key issues for the appeal," reflected FSC Board Chair Jeffrey Douglas, one of the architects of the plaintiffs' lawsuit. "We express great appreciation for his volunteer effort by FSC Board Member and Legal Committee Chair Reed Lee in contributing to the draft of the Rule 59. Focus of our distinguished attorneys, Michael Murray and Lorraine Baumgartner, now will turn to the appeal to the Third Circuit Court of Appeals."
And rest assured, when that appeal is filed, AVN will be ready to dissect it and place it in an easily understandable context.