PHILADELPHIA—It's probably a good thing that U.S. District Judge Michael Baylson moved the scheduled time for the argument on the government's motion to dismiss Free Speech Coalition's (FSC) anti-2257 lawsuit from 4 p.m. to 2 p.m. last Friday, because the attorneys for both sides spent the better part of three hours sparring with each other and responding to the judge's hypothetical questions.
The argument took place in the United States District Courthouse for the Eastern District of Pennsylvania, which is part of the Third Federal Circuit.
Judge Baylson let the parties know early on that rather than allowing one side and then the other to present its case, he would be asking counsel to address specific issues that he found troubling or wanted more information on, and that therefore he would be bouncing back and forth between the attorneys in his search for answers to his concerns. He also suggested that rather than have two separate hearings, one on the plaintiffs' motion for a preliminary injunction against enforcement of 2257 and another hearing that would be the trial of the case itself, that both parties simply agree that if the suit survives the government's motion to dismiss, then at trial plaintiffs could argue for a permanent injunction at that time. Both sides agreed to that plan.
At the outset, Judge Baylson's primary concern appeared to be whether Third Circuit precedent contained any decisions that would contradict or at least cast doubt on the Sixth Circuit's ultimate decision in Connection Distribution v. Holder, the anti-2257 case that prominent First Amendment attorney J. Michael Murray had won before a three-judge panel of the circuit but which was overturned by an en banc panel of that court. The U.S. Supreme Court denied Murray's certiorari petition in that case just two days before he filed the current lawsuit in a circuit which is thought to be much more supportive of First Amendment concerns.
Of course, there are major differences between the Connection case and the FSC suit. For one thing, the Free Speech suit has 14 additional plaintiffs of varying backgrounds, including art, journalism and sex education, but perhaps more importantly, it is the most comprehensive challenge to the 2257 and 2257A statutes and regulations that has yet been mounted.
The first major topic of discussion at Friday's hearing was the question of whether the 2257/2257A statutes should be examined under strict scrutiny, which requires the government to show that the law implicates a compelling governmental interest, is narrowly tailored to achieve that interest, and is the least restrictive means to accomplish the government's goal, or under intermediate scrutiny—the standard used by the Sixth Circuit en banc panel in Connection—which requires merely that the government show that the law furthers an important government interest and that the operation of the law is substantially related to that interest.
"Now, I want to be candid with you," Judge Baylson told Murray. "Before I'm willing to depart from that kind of a holding, the Supreme Court denying cert, you're going to have to persuade me that there's a Third Circuit case that mandates that I find strict scrutiny. ... I'm not going to buck the Sixth Circuit unless you convince me that I have to because of Third Circuit jurisprudence."
But Murray was ready with his answer, citing comments made by the Third Circuit panel in Brown v. City of Pittsburgh, a case involving the speech rights of protesters outside abortion clinics, which the court said "implicates fundamental First Amendment interests," in which the court discussed whether "buffer zones" around clinics are a content-based restriction—an important point, since the government has claimed that 2257 and 2257A are not content-based.
"I think it's important to remember that the Sixth Circuit never addressed the argument that I'm making here, that the exemption in 2257A makes 2257 content-based because we filed the appeal before that new law was passed," Murray told the judge. "2257A creates an exemption [from recordkeeping] solely on the basis of content. If you're a commercial producer of simulated sexual material, you don't have to comply with the recordkeeping/inspection/labeling regime; all you have to do is send in a letter to the attorney general. But if you're a producer identically situated—same business practices, same operation—and you produce actual explicit material, you don't get the exemption, and the only difference is the content of the material."
Murray also discussed Conchatta v. Miller, a case he himself had argued in 2006, which had challenged the Pennsylvania Liquor Code's restrictions on semi-nude dancers as overbroad, since the regulations prohibited "lewd or immoral" entertainment in bars, which terms the court found to be impermissibly vague. Murray also referenced the Third Circuit's rulings in COPA I and II, as well as the final opinion of the district court after the trial of the case.
However, Murray's argument kept coming back to the exemption (also referred to as "certification") which 2257A allows for mainstream producers of simulated sexual content, who can simply claim that they already keep records similar to those required of adult producers under 2257, and therefore not be subject to 2257's indexing, inspection and labeling requirements.
"We think that the certification provision demonstrates constitutional flaws in the following ways," Murray detailed for the court. "It renders 2257 content-based; that's number one. Number two, it demonstrates that 2257 is not narrowly tailored because Congress has made the judgment that for those commercial producers who in the ordinary course of their industry practice already collect and maintain IDs, that the burdens of recordkeeping and labeling and being searched without a warrant need not be imposed upon them if they'll simply send a letter to the attorney general, so it demonstrates that 2257 is not narrowly tailored. We also think it deprives the commercial producers of actual sexually explicit material equal protection of the laws as guaranteed by the due process clause of the Fifth Amendment. And we think that there's just no justification for the differentiation of treatment."
Murray also noted the fact that if an adult producer creates a simulated sex product, it can obtain the exact same recordkeeping/labeling exemption from the attorney general as can a mainstream company—another clue that both 2257 and 2257A are content-based regulations.
"It's viewpoint discrimination," Murray charged. "When you look at the legislative history, they did the certification for the Hollywood movies, and when you look at it, it says because they're good, they're First Amendment-protected activity, but these other people, these pornographers, they're bad, and therefore..."
"It's probably some lobbyist from Hollywood that convinced somebody in Washington to add this exception there," Judge Baylson interrupted, "because they said, 'look, we already keep all these records and so forth so why should we have to do it?'"
"So do the adult producers," Murray retorted. "The point is, that's exactly the identical position of the adult industry. They kept the records long before Hollywood did probably because they were more concerned about it."
"But these are judgments that Congress makes. Congress wanted to lessen the burden on mainstream Hollywood producers, so they said, 'If you're going to put this stuff, simulated sex into commercial productions, you don't have to do this'," the judge tellingly analyzed.
But Kathryn Wyer, who represents the defendant, Attorney General Eric Holder, pushed the idea that the 2257/2257A statutes and regulations are no different than recordkeeping requirements for several other industries.
"In regard to the certification option, I don't see that as a content-based restriction," she told the judge. "What it does is recognize that some... Hollywood studios are already subject to a host of requirements, and Congress just made a reasonable judgment, well, why do we have to make them do it twice, and so they allowed for this exemption. But that's not a content-based distinction in terms of what images are produced; it's just a realistic, a reasonable determination that some industries are already subject to requirements. We don't know whether such industries would even agree that it's less burdensome than the age verification and recordkeeping scheme at issue here. I mean, if you are subject to that regime, maybe you would say that that's more burdensome."
Wyer apparently was unfamiliar with the fact that 2257 not only requires that adult companies keep government-issued photo identifications on all performers, but also requires them to cross-reference the IDs with all movies or other explicit content that performer has done for the company; all nicknames and stage names the performer has ever used; that a copy of the depiction must accompany the ID; and that the depiction itself must be labeled with the legal name and address of the recordkeeper.
"What the plaintiffs seem to be seeking is a declaration from the court that what Congress should have done is allow everyone to use the certification option, but that is not the role of the court in this situation," she continued. "And it's kind of doubling up on the argument; it's saying that this certification option both makes the requirement content-based and therefore subjects the scheme to strict scrutiny, and it also shows that the means that Congress chose in the age verification and recordkeeping system is not the least restrictive means; it's like doing both at once, where under the intermediate scrutiny regime, Congress did not have to choose the certification option for everyone; it shows a narrowly tailored system that does not ban any form of protected speech but simply requires that the producers check ages of their performers before including them and recording them in photographs of sexually explicit films and photographs."
Would that it were even that simple!
After a break, Judge Baylson wanted to hear Murray's argument on why 2257 violates producers' Fifth Amendment rights.
"The argument is very simple," Murray responded. "When the law was first passed, they made a big deal, the entire Justice Department went in front of the Congress and said, 'You've got to exempt, you've got to put an immunity in the statute that it can't be used to prosecute anybody for any crime except for failing to keep the records; otherwise, it would violate the Fifth Amendment right against self-incrimination.' In 2003, in the PROTECT Act, they changed that, and they instead said that, 'Yes, you can now use all of these records as evidence of federal obscenity violations,' so now, everybody who keeps records of actual sexually explicit images, if the government comes in and seizes the records, they can be used in a prosecution of those people for violating federal obscenity laws, and we think under the Marchetti-Grosso line of Supreme Court cases, that that on its face violates the Fifth Amendment privilege against self-incrimination. The Sixth Circuit said that the issue wasn't ripe. We think it is ripe because people are compelled to put down this information every day, so this is a ripe claim."
Also present for the argument were attorneys from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF), both of which organizations had filed amicus briefs in support of the plaintiffs, and in a departure from normal procedure, Judge Baylson allowed those attorneys to address the court if they wished. Only the ACLU's Fred T. Magaziner availed himself of the privilege, and his focus was on the impact of the law on private citizens.
"There are people who post pictures on Craigslist that are explicit and that would fall within the definition of actual sexual conduct here because they are by any definition lascivious pictures of the genitals," Magaziner noted. "But to say that someone who would post such a picture in hopes of attracting a sexual partner is engaged in creating pornography intended for sale or trade, is to stretch that phrase out of, you know... As we read the statute, it covers not only private individuals, private couples, which the Sixth Circuit majority discussed and said they think it does cover, but as we pointed out, if you look at the literal language of the statute, it covers a sex manual published that includes pictures of adults actually engaged in sexual activity; it covers art, because Congress in writing the statute did not take the time to carve out those areas of sexually explicit depictions that the courts carved out 40 years ago in distinguishing between obscenity and other sexually related materials. It covers sex education manuals, it covers art, it covers journalism, if a journalist happens to take such a picture. It is really an extraordinarily broad collection of activities that's covered here."
Judge Baylson then turned his attention to plaintiffs' Fourth Amendment arguments, noting that although the Sixth Circuit had not addressed any such claims in the Connection case, it nonetheless included in its majority opinion the caveat, "At least until the Attorney General attempts to obtain §2257 records from these individuals [swingers who had advertised in Connection's contact magazines], they face no greater risk of prospective harm than a claimant concerned that the government will violate his Fourth Amendment rights in future searches."
The judge then asked Murray why 2257's recordkeeping requirement was any different from, for instance, the wage-and-hour recordkeeping requirements of the Fair Labor Standards Act (FLSA), and how adult producers' Fourth Amendment rights would be any more violated than those of a manufacturer whose offices were raided by FBI agents, under a doctrine known as the "administrative search exception," looking for just such wage-and-hour records?
"It [an administrative search] can only apply to a closely regulated industry," Murray responded. "The Supreme Court has said, if it's not a closely regulated industry, the administrative warrant exception will not apply. Now think about who this applies to. Even if you just limit it to the adult entertainment industry, that's not a closely regulated industry by itself because the First Amendment prohibits close regulation of constitutionally protected speech."
"But it goes beyond that," he continued, "because artists, photographers, sex educators, private citizens who post their sexually explicit images, millions of Americans who put it on their cell phones, they've got to subject themselves to warrantless searches of their homes. It's not a closely regulated industry and if it isn't, the Supreme Court has made it clear they cannot rely on that exception.... I want to be clear, when you read the statute and the reg, I am absolutely certain that the conclusion has to obtain that every single inspection that will be carried out will violate the Fourth Amendment. There can never be an inspection under this regime that will not violate the Fourth Amendment because it will be done without a warrant and without probable cause. And the statute proves that. The statute says, 'Any person to whom the statute applies shall maintain the records required by this section at their business premises or at such other place as the attorney general may by regulation prescribe and shall make such records available to the attorney general for inspection at all reasonable times.' Then it goes on to say, 'It shall be unlawful for any person to whom subsection A applies to refuse to permit the attorney general or his or her designee to conduct an inspection under subsection C,' and it authorizes regulations, and when you go to the regulations, they're quite clear: 'Investigators authorized by the attorney general are authorized to enter without delay and at reasonable times any establishment of a producer where records are maintained to inspect during regular working hours. Advance notice is not required. Upon commencing an inspection, an investigator has to present his credentials, explain the nature and purpose of the inspection, indicate the scope of the inspection and the records he wants to inspect, and he's got to conduct the inspection so as to not unreasonably disrupt the operations. An investigator may copy at no expense to the producer any record that is subject to inspection'."
Although Wyer claimed that a close reading of the statute shows that it doesn't really give inspectors the power to enter a company's premises to inspect the records—a claim not borne out by the 26 adult companies already inspected—Judge Baylson was more concerned with the government's claim that the 2257 inspection regime had never been and never would be enforced against private citizens, only adult production companies. Murray, however, noted several Supreme Court and Third Circuit cases which hold that it's the language of the statute, not the claimed interpretation of the law by the attorney general, which controls what powers are granted to the government.
Judge Baylson, a George W. Bush appointee, however, decided to play devil's advocate.
"Just from sitting here, you know, it's really a stretch to say to some district judge that I should strike this whole thing down because there's some possibility that a government agent may go to the home of somebody who's involved in adult entertainment or in art or an artist or something like that," he posited. "It's so fundamentally unfair that it's hard to envision a government agent doing that and that I should stretch out and say this whole thing is unconstitutional because there's a provision here that a government agent could go to a home of, say, a psychologist involved in counseling sex couples or sex addicts and they have explicit pictures in their offices and for that reason the whole statute is unconstitutional. That's not the way judges think. I mean, I've never seen an opinion like that. You're grasping at the extremis of extremises [sic] and saying because that's in there, the whole thing should fall, and that's just not the law, and I don't think you can find a case that's going to say that."
This led to the following exchange:
Murray: "Your Honor, I think that if they go to a commercial producer at his office without a warrant, without probable cause to investigate a crime, and they demand entrance and they search through the records, the Supreme Court, as I understand their jurisprudence, that is a violation of the Fourth Amendment."
Judge: "What's a case, first?"
Murray: "Every case that stands for the proposition that there's a presumption that you need a warrant and probable cause to conduct a search."
Judge: "Well, just tell me one. I think there are lots of cases that allow that. You've got the Fair Labor Standards Act; the IRS has that privilege in certain circumstances."
Murray: "The IRS can't come into my home and demand records. They can summons me. There's a process."
Judge: "The Fair Labor Standards Act gives that right—I've got a case under the FSLA. The government has a right to demand records without a warrant and without notice, on wage-and-hour compliance."
Murray: "Sure, but I think they have to issue an administrative summons. There's process that issues. It isn't that they can show up with the force of law and say, 'You have to permit me to enter and I'm going to go search your records.' They have to issue a summons. There's process. In all the cases that you're talking about, Your Honor, there's process: An IRS summons, a notice to produce records, a subpoena. There's no case out there other than the administrative law exception cases, the Berger line of cases, that upholds a search without a warrant under circumstances in which there's no other process, like a subpoena or a summons. So no, in my view, Your Honor, this is really just black letter law and it is the government in the statute that is promulgating something that is unique and that has never been attempted."
The judge then allowed Wyer to address the issue:
Judge: "What's your response to Mr. Murray's argument that a lot of his clients if not all of his clients are engaged in First Amendment rights and exercising them and therefore they're entitled to more protection than dog breeders or farmers or chicken pluckers?"
Wyer: "I think the scope of the inspections here is so limited that they are reasonable under the Fourth Amendment."
Judge: "Why do you keep saying it's limited? I mean, they're allowed to go and see any records that they may have. I mean, there's no limitations."
Wyer: "No, this is not any records that the plaintiff happens to have in their filing cabinet. These are the specific records that are created under the recordkeeping scheme that show that the producer looked at the identification of the performer, and these records have to be kept separately from any other records that the producer has, and the DOJ when promulgating that requirement said that the purpose of that is to make—is in a way to facilitate the inspection, to streamline it for the sake of the inspectors, but it also prevents inspectors from rummaging through producers' entire files. All the inspector is doing is looking at those specific records that were created only for purposes of this recordkeeping scheme. These records, all they have is the identification of the performer. They're indexed by the performer's name, and they say this performer was in this production; this is the website where this is; here's a picture of the image that shows that the labeling requirements were followed. They're also supposed to be kept in this very efficient manner so that all the inspector does—the regulation requires that when the inspector comes, he has to present his credentials, explain the purpose of the inspection including the limited nature of the records inspection—that's the language in the regulation—and he has to identify the records that he wants to inspect. He has to explain the scope of the inspection that he intends to conduct in that case. He has to conduct the inspection so as not to unreasonably disrupt the operations of the producer."
But it was the mere fact that inspectors could use the 2257 records to aid in a felony obscenity prosecution that prompted Murray's response.
Murray: "They're going in to investigate whether somebody committed a crime; they're not going to see if there is a building code violation. That automatically takes it out of the administrative..."
Judge: "Well, that's not entirely fair. They're going in to see whether somebody has kept these records. If they failed to keep the records, that could be a crime, but if somebody has kept the records, then they want to see what the records are. And I'm going to come back to that in a little hypo I'm going to give you in a few minutes, but it's only a crime if you haven't kept the records. And there are a lot of statutes that require people to keep records and make it a crime if you don't. Going back to the Internal Revenue Service, you and I, we're supposed to keep our records for six years."
Murray: "So they can civilly determine [something]. There's no civil component to this. At least the IRS has a civil reason, an administrative reason, as do building codes, as do employment records. The only purpose for these records is a criminal statute, and if you don't keep the record the right way, you've committed a crime. They're investigating a crime, Your Honor."
Judge: "You keep saying that but the purpose of this statute is to prevent child pornography, and you're right: If you ignore the requirements, then maybe you're committing a crime, but this is not like bank robbery, you know, where you're going to be sent to jail if you rob a bank. This is to prevent child pornography; that's the overriding reason here, that everybody's got to keep in mind."
Murray: "But they didn't make it a civil penalty; they made it a crime not to keep the records in a certain way."
Judge: "Because they want to be sure people do it. So, deterrence; that, to me, doesn't make it unconstitutional. I think you've got a very important argument about the procedural aspects of this—don't get me wrong—but the concept of requiring the records does not seem to me to be unconstitutional. And I don't think you're arguing that keeping these records are unconstitutional, because you've made the point that your clients and others in this industry have voluntarily made these records for years."
Murray: "No, the point on the Fourth Amendment is that it's a search and seizure. That's the point. And Your Honor, I defy the government to find any statutory scheme and set of regulations that authorizes what this set of statutes and regulations authorizes in the way of warrantless searches and seizures without some other form of process as a substitute, be it a subpoena or a summons or an administrative directive. But one thing I can't stress enough, Your Honor: A huge number of people, including many of the plaintiffs in this case, are photographers. Huge numbers of photographers are like one and two man and woman operations. They keep all of their records at their home; they work out of their home. All the photographers that are going to be subjected to the inspections for the most part are going to have their homes inspected. In fact, this regulation requires you—and we have a plaintiff who did it—if you don't keep regular business hours of at least 20 hours per week, you have to write a letter to the attorney general telling the attorney general what time of day and where this designee can come and inspect the records, and it's got to be at least 20 hours a week. We have a plaintiff who will testify that he's written a letter to the attorney general saying, 'I will be available at my home for you to inspect the records between 1 and 5 Monday through Friday,' and now he's got to stay at home Monday through Friday. But the point is, and I don’t make that point only for the as-applied challenge; it is on its face unconstitutional. There can never be an inspection under this regime that would satisfy the First and Fourth Amendments, and that's why it's proper for this to be struck down on its face, because in every single instance, the government will be violating the Fourth Amendment requirement that there either be a warrant, probable cause or some suitable substitute."
The final half-hour of the argument was devoted to a series of hypotheticals posed by Judge Baylson, who first asked Wyer which sets of circumstances would trigger an inspection under 2257?
Perhaps the most revealing hypothetical involved a married couple with a child over 18 who, with an underage child, make a sexually explicit video and give a copy of it to a friend, thereby making the couple "producers."
The judge's question: Would that set of circumstances trigger an inspection under 2257?
"If a minor child is in this video, that meets the definition of child pornography," Wyer replied, "and [if] somehow the FBI becomes aware of it, I couldn't say they would not apply the requirements [of 2257] but more likely they would simply prosecute the individuals for child pornography."
But the judge probed even further: What if that same couple and adult child make a sexually explicit video with another child of indeterminate age, copy it and give it to a friend; would the FBI ask to inspect this private couple's records?
"At this point, the government has not disavowed the application of the requirements in that context; it has only disavowed the application of the requirements to a private couple or intimate associates making..." Wyer trailed off, perhaps realizing that earlier she had indicated that government policy was not to inspect private citizens.
The judge then addressed Murray, asking whether a video, privately produced, that is clearly child pornography would make the case for the government requiring private citizens to keep 2257 records?
"The answer is, that's precisely my point, Your Honor," Murray replied. "The one interest the government has is in applying this statute to child pornography. But the problem is, the reason it's overinclusive, the reason it's overbroad, the reason it isn't narrowly tailored, is because it applies to vast quantities of protected material involving adults that is not child pornography, and the government is shifting the burden to these innocent Americans to prove that their material is protected, when it's the government who should bear the burden of proving it's unprotected. So yes, applying the statue to child pornography is fine; we don't complain about that. That would be a legitimate governmental interest."
After a brief discussion regarding whether some portions of the 2257 statute could be severed from others in order to make the law constitutional—neither attorney had a clear answer for that—the judge allowed Murray to make a closing argument.
"I think it might be useful to bring us back to the procedural posture we're in," Murray began. "I think if anything has been proven by today's spirited arguments, it's that we should survive a motion to dismiss; that we have plausible claims; and that what the court really needs in order to fully adjudicate the various constitutional claims here is a full and complete record, and that if anything has been demonstrated, the motion to dismiss should certainly be denied."
"We clearly have a statute and a set of regs that by everyone's concession applies to millions of Americans, both in the adult entertainment industry and not in the adult entertainment industry," he continued. "Millions of Americans who post on YouTube, who post on the social networking sites which the government says the statute applies to, they've got to put a label on their images with their home address; they've got to keep records. Cell phones, she [Wyer] hasn't talked about that. Think about it: Even under sale and trade, cell phone to cell phone, across state lines, private citizens, of a sexual image, they've got to put a label on their cell phone picture and they've got to keep the records. You can't avoid the staggering overbreadth. Journalists, sex educators, artists, private citizens and adult entertainment producers—the over-inclusiveness and overbreadth is staggering, Your Honor, but we certainly have enough to go forward and give you an evidentiary record so that the ultimate decision can be made on a full record and not in a vacuum."
Judge Baylson gave Wyer two weeks to file a supplemental brief on her motion to dismiss, and gave Murray two weeks after that to respond. He promised a ruling on the motion shortly thereafter.