PHILADELPHIA, PA—As reported yesterday, the U.S. Department of Justice (DOJ) hit a roadblock in its efforts to shift the burden of proving that adult movies don't contain minors to the adult industry through its massive and expensive recordkeeping and labeling regimen, 18 U.S.C. §2257, when Judge Michael Baylson denied the government's Motion to Dismiss the Fourth Amendment claims in Free Speech Coalition's lawsuit. First Amendment attorney J. Michael Murray, counsel for the plaintiffs in the lawsuit, and who's been involved in fighting §2257 for almost 20 years, spoke to AVN and gave some details of yesterday's argument and decision.
The Fourth Amendment, as too many adult industry veterans have good reason to know, states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." §2257 turns that amendment squarely on its head by authorizing a designee of the Attorney General—in 2006-7, it was the FBI—to inspect an adult production company's (or anyone else's) §2257 records without the required warrant and affidavit of probable cause simply because that designee has seen younger-looking adults performing in that company's movies.
"The government's Motion to Dismiss was to dismiss the Fourth Amendment claims on the ground that the court shouldn't accept jurisdiction over the claims because of legal doctrines known as 'standing' and 'ripeness'," Murray explained. "Essentially, the government's argument was, they submitted an affidavit of an FBI agent, a guy by the name of Novotny, who had been the supervisory agent over the 29 searches that had occurred in 2006 and 2007—he was the guy that actually set up the program. So they submitted this affidavit indicating that these inspections had occurred in '06 and '07, a total of 29 of them, and also that when I initially got the ruling in Connection Distribution striking the law down before the en banc court took that away from us—as a result of that decision, they suspended the inspections, and that even after the Connection case was resolved against us by the Sixth Circuit sitting en banc, they did not resume the program and they haven't done any inspections for the past five years."
"And so, the government was taking the position that there's no imminent threat of inspections occurring, that we don't know what kind of inspections they would do if they ever reinitiate the program, and therefore, the case doesn't present a case or controversy, and we don't have standing to challenge the statute of Fourth Amendment grounds," Murray summarized.
"We of course responded in a pretty good brief, explaining how that would ask the judge to defy what the Third Circuit had done, because the Third Circuit had specifically overturned the dismissal of the Fourth Amendment claim as well as the First Amendment claim, and had remanded it precisely so that we can get discovery of the searches that they did do," Murray continued. "So that was their argument, and the court indicated that it was very dubious of the government's argument because as we had pointed out, it doesn't matter what the government says their current intention is; our people, our clients have to comply with every dot and every 't' of this statute, which means that whether they're going to do a search today or tomorrow or next year, we still have to have our records ready to be available any time they knock on the door without a warrant and demand that they be permitted to search our records without a warrant and without any probable cause, and whether the government is planning on doing these searches currently doesn't help us because we're not relieved from the obligations and burdens imposed by the statute."
When asked by the judge to respond to Murray's arguments, the attorneys for the Justice Department were unable to argue that the FBI would not engage in further §2257 inspections, even if it were unlikely that it would do so as long as the FSC lawsuit is still in process, nor could they produce any case law that supported their Motion.
"So the judge said he's going to order them to give us discovery; that unless they can come up with some kind of a privilege, he's going to let us examine the FBI reports of the 29 searches, and he's going to let us take deposition of at least some of the FBI agents to flesh out exactly what happened during those searches that would support our Fourth Amendment claims," Murray reported.
Murray pointed out that discovery on the First Amendment issues has been ongoing for some time, with various of the plaintiffs answering affidavits propounded by the DOJ—while for the most part, the DOJ has objected to providing similar material to the plaintiffs.
"We've produced a very substantial amount of material in support of our case," Murray said. "They've lodged a lot of objections, which we're going to be complaining about, and the judge has authorized us to submit a letter on December 10 outlining any discovery disputes we have, and he's going to have a telephone conference on December 13 and he's going to resolve those disputes and he said he's going to stay very much on top of the discovery in this case to make sure that it gets done."
That's a hopeful sign to those who have been following the case, and who are aware that Judge Baylson is a Bush appointee who, at the beginning of the case, seemed ready to give it short shrift, but who now, in the wake of last Spring's Third Circuit opinion, appears to be taking the case more seriously.
But all the good decisions in the world won't make a difference if the adult industry doesn't put its money where its mouth is in terms of funding this lawsuit.
"These burdens aren't going away," Murray warned. "The prospect of additional searches and seizures aren't going away; the prospects of prosecutions and people going away to prison for years and years if they don't comply is going to be there, and there remains an urgency, and people shouldn't be lulled into a false sense of security, because the government could restart its inspection program at the drop of a hat, and if adult content producers are not keeping their records properly, sooner or later, somebody's going to get nailed."
There's already been speculation in the adult legal community that if the FBI reports of the 29 companies that were inspected ever come to light, the industry will be shocked at how out-of-compliance most if not all of those companies were found to be—and in many cases, still are, even though there's no doubt that everyone performing in their movies and online content are adults.
But if the funding for this lawsuit dries up, such information may never come to light—and producers will be right back where they were in 2007: Worried that their §2257 records are incomplete or somehow otherwise inadequate, and dreading that knock on the door that says their offices and warehouses are about to be invaded by government agents whose reports to the Justice Department may cause those producers to have to defend technical violations of this unconstitutional law that could land them in federal prison for five years or more.
"The industry needs to seriously start funding this," Murray stated—and producers who fail to take this to heart will have only themselves to blame.