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Op-Ed: 2257 Judge Rules Against FSC on Almost All Issues

And he's wrong about nearly every one of them!

Op-Ed: 2257 Judge Rules Against FSC on Almost All Issues

PHILADELPHIA, PA—The ruling issued this morning by Judge Michael M. Baylson in the lawsuit that pitted Free Speech Coalition and 15 other plaintiffs against the Justice Department over the federal recordkeeping and labeling laws, 18 U.S.C. §§2257 and 2257A ("2257"), finds for the government on almost every issue—and on almost every issue, it's wrong.

Take the opening sentence of the 74-page Memorandum: Findings of Fact and Conclusions of Law, which accompanied the judges one-page Judgment in the case: "The extent to which the adult porn industry utilizes young-looking performers is the central fact issue in the trial of this case." The actual central fact issue, of course, is whether 2257 in any way prevents minors from appearing in adult movies, and of course the answer is "No," as previously analyzed in detail here—but what follows is simply bizarre.

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"The attraction of males to younger women is not a new story," Baylson continues, then goes on to quote from a number of Mozart operas(!) to apparently prove that point—a point which was never in doubt, has no relevance to 2257 and hence played no part in the eight-day trial of the case.

But it's not until page 2 that Baylson gets to the meat of his findings: "[T]he Court has concluded the government largely succeeded in defending the constitutionality of the Statutes. Namely, the Court finds Sections 2257 and 2257A and their corresponding regulations to be constitutional under the First Amendment, both as-applied and facially. It also finds the Statutes and regulations to be constitutional under the Fourth Amendment, except for in one regard—the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record. Nonetheless, the Court declines to issue an injunction under the Fourth Amendment, either as-applied or facially, because it finds the prospect of future inspections too remote to justify such relief."

At the beginning, Baylson proceeds to summarize the procedural history of the case, beginning with his own dismissal of the case in 2010 and the details of its remand by the Third Circuit Court of Appeals, which allowed only certain specific issues to go forward—though when the case is appealed, all of the issues dismissed by the Third Circuit will again be in play.

However, based on that Third Circuit decision, the unconstitutionality of 2257's suppression of anonymous speech, its prior restraint on legal sexual speech and its imposition of jail terms for those who fail, in plaintiff Jeffrey Douglas' words, to meet the "Perfection [that] is the minimum standard to avoid committing felonies," were not before the trial court. Likewise, whether 2257 should be analyzed under the Supreme Court's guidelines for strict or intermediate scrutiny of the law was not part of the remand, although the appeals court allowed plaintiffs to present evidence as to whether 2257 is "narrowly tailored" enough to effect the government's alleged purpose in passing the statute. (Hint: It isn't.)

Judge Baylson's recounting of the case's procedural history goes on for another four pages before he gets to his summary of the evidence presented at trial, all of which AVN covered in detail while covering the trial here, here, here, here, here, here, here and here.

Still, some parts of Baylson's summaries are worth noting. For example, in recounting the testimony of Eugene Mopsik, Executive Director of the American Society of Media Photographers, the judge notes that photographers' use of model releases and their common checking of subjects' photo IDs "do not make photographers do anything they weren’t already doing to ensure their models are adults—they only impose additional, unnecessary record-keeping burdens on photographers." The judge also notes other objections to 2257—most notably the cross-referencing requirement and being available 20 hours a week for inspections—by the other photographer plaintiffs.

Most telling, however, was the judge's summary of attorney Jeffrey Douglas's testimony, that "before 2257, 'it was universal' for producers in the adult entertainment industry to use model releases and to have 'some statement of age' in the release. Regardless of the Statutes, 'no sane producer would knowingly use a minor' because there are criminal sanctions involved, the materials have to be recalled and destroyed, and the model release would be invalid. Accordingly, similar to Mopsik, Douglas suggested Section 2257 is not forcing primary producers in the pornography business to do anything they wouldn’t already do—that is, ensure their subjects are at least 18 years old—but is merely imposing unnecessary costs on producers." [Citations omitted here and below]

Beyond that, Judge Baylson clearly gives more credibility to the government's expert witnesses than the plaintiffs', accepting, for instance, researcher Janis Wolak's statement that "two-thirds of persons arrested for child pornography were in possession of images of pubescent adolescents," from which the judge concludes that, "the notion that child pornographers prefer pre-pubescent, very youthful-looking children, is incorrect." (Never mind that this case is not about child pornographers.) Likewise, he fully accepts Dr. Frank Biro's assertion that "a determination of age [by physical inspection of a young-looking adult] was impossible, even for a person with his expertise."

The judge's recap of the testimony also includes a long section on how the FBI's 2257 inspection came about, and some of the details of it, including how inspections were performed—and the fact that 86 percent of the producers inspected "had some type of Section 2257 violation"—and those were the people who "were at least attempting to comply with the Statutes"!

A large part of the judge's analysis of the testimony on First Amendment issues deals with what he sees as the problem of "youthful-looking performers," ignoring the fact that child pornography laws make a clear distinction between minors and adults when it comes to sexually explicit content.

For example, he lauds the government's cross-examination of the plaintiffs for bringing out that "Plaintiffs did consistently use young-looking performers and that almost all of their work had a commercial or profit motive," and that "there is a significant market for pornographic materials depicting [youthful-looking] individuals," which seems to be all he needs to find that the existence of 2257 is justified. Moreover, he found that all the producer plaintiffs "used models ages 18-24 years old. So despite Plaintiffs’ professed interest in not employing women or men aged 17 or younger, the evidence is irrefutable that Plaintiffs are interested in using youthful-looking performers." [Emphasis in original]

But it gets worse: "Of the experts, the Court gives greater weight to the testimony of the government’s witnesses as compared to Plaintiffs’ witnesses," despite the fact that only anti-porn activist Gail Dines has spent any real time looking at porn produced by the commercial adult industry—and despite the fact that her researches "showed that 'teen porn' accounts for approximately one-third of the material on pornography tube sites, that it is one of the most frequently—if not the most frequently sought—genres of pornography, and that it has grown by over 200% between 2004 and 2013." The court, therefore, shows its complete lack of understanding of the attractions of child pornography, since most child porn fans are turned off by anyone of a legal age, or who looks to be of legal age, and that the vast majority of those who search for "teen porn" are looking for young-looking but legal adult performers.

Worse still, Baylson discounts the testimony of Drs. Michelle Drouin and Mark Zimmerman regarding the amount of image sexting that goes on in America since their researches didn't involve random sampling and failed to supply any numerical estimate of how many explicit sexts (and Skypes and email attachments, etc.) are out there, when common sense would suggest there are plenty.

"In sum, the Court relies on Dr. Linz’s cross examination for some findings, but it rejects all of Plaintiffs’ experts’ conclusions," Baylson sums up.

And what of the tens of thousands of dollars adult primary and secondary producers spend to comply with the onerous requirements of 2257?

"The Court finds the requirement to request and maintain copies of performers’ photo identifications is not uniquely onerous or burdensome on producers, but is consistent with other record-keeping requirements mandated by federal, state and local governments," Baylson rules. Hey, according to him, it's just like the government requiring employers to fill out I-9 forms verifying employees' legal status, or maintenance records for OSHA inspections, or food, drug and consumer product manufacturers to keep records on safety standards!

Finally, on page 38, the judge gets around to analyzing all this evidence, first dealing with the question of whether 2257 is "narrowly tailored" enough to meet legal standards—and of course, after dismissing plaintiffs' testimony that adult producers only want to shoot adults, and plaintiffs' experts regarding how many performers would likely be confused with minors, Baylson decides, "The law need not be the least-restrictive means of effectuating its underlying purpose if 'the means chosen are not substantially broader than necessary to achieve the government’s interest.' Rather, what is required 'is a "fit" between the legislature’s ends and the means chosen to accomplish those ends ... a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served'." Therefore, "After close consideration of the evidence presented at trial and admitted into the trial record, the Court concludes the government has shown by a preponderance of evidence that the Statutes do not burden substantially more of Plaintiffs’ speech than is necessary to further the government’s interest in combatting child pornography."

Baylson then goes on to attack plaintiffs' argument that a minimum of three-quarters of performers in plaintiffs' works are 26 or older by noting that Biro testified that some 13- and 14-year-olds could be confused for adults, and that anyway, it really takes an expert like him to tell the difference, since "with makeup and dress, the possibility for confusion of one’s age is enhanced"—and anyway, the fit only has to be "reasonable, not perfect"—and anyway, those adult companies make enough money to afford to keep and index the records with no sweat.

"Moreover, the government demonstrated the universality of the record-keeping requirement is justified as applied to Plaintiffs because any alternative rule would introduce subjectivity into the regulatory scheme and lessen its effectiveness," Baylson writes. "For instance, if Plaintiffs had to maintain records only for persons who appear to be 25 years old or under, this would leave Plaintiffs to rely on their own judgment in determining whose identifications to check. Not only would the efficacy of the Statutes be reduced—as Plaintiffs would surely make some errors in estimating performers’ ages—but as Agent Lawrence testified, anything less than a universal requirement would invite disputes between Plaintiffs and law enforcement and complicate the inspections process."

Once again, Baylson subtly places adult producers in the position of having to prove that everyone in their content are adults, turning on its head the legal requirement that if the government wants to prosecute some particular content as child porn, the government itself has to prove it contains children, and adult producers can escape the charge by providing IDs for the suspect performers.

Also, Baylson doesn't care that plaintiffs Betty Dodson's and Karlin Ross's "genital art gallery" project, not to mention Barbara Alper's intention to photograph and publish anonymous gay men having sex on Fire Island, would be illegal under 2257; that's just the price of 2257's prior restraint of speech, which would be illegal in just about any other context.

Next, Baylson considers plaintiffs' overbreadth challenge, and even cites the Third Circuit's ruling that he should consider whether the 2257 statutes "could be overbroad in their application to sexually explicit depictions of 'clearly mature adults' that 'could not be mistaken for children'" and also "to consider 'both the amount of speech that implicates the government’s interest in protecting children (e.g., depictions of performers who reasonably could be minors based on their apparent ages) and the amount of speech that is burdened but does not further the government’s interest (e.g., depictions of performers who are obviously adults)'."

Another issue Baylson was directed to deal with was whether "the Statutes could be overbroad 'based on their purported regulation of purely private conduct'," such as the myriad amateur photographers and videographers (including sexters) who shoot sexually explicit subjects: "Again, it directed this Court to consider the amount of 'private, noncommercial depictions created and viewed by adults in their homes' burdened by the Statutes, and to consider whether the burden on such private communications is substantial in relation to the Statutes’ plainly legitimate sweep."

In rejecting plaintiffs' overbreadth argument, Baylson returns to his argument that none of the plaintiffs produces a product containing only "mature adults," that defense expert Gail Dines testified that "approximately one-third of commercial pornography on the internet depicts 'teens'—which she cautions is under-inclusive, because it only captures pornography tagged with the keyword 'teen' or an allied term, while other pornography could and likely does include young-looking performers as well," from which he concludes that "that is a vast amount of depictions that falls under the Statutes’ plainly legitimate sweep," and anyway, giving the industry an exception for, say, performers over 26 years old would introduce "subjectivity, uncertainty and immeasurable enforcement difficulties into the regulatory scheme."

"Without a strong and robust regime for policing the ages of performers, there would be incentives on both sides of the equation to use minors as performers in sexually explicit depictions," Baylson claims, ignoring again the fact that child pornography laws exist. "On the employer-side, the record accumulated in this case shows there is a high commercial value associated with the young-looking performer. On the employee side, there are undoubtedly minors who do not contemplate becoming doctors, lawyers or hedge fund zillionaires, and would be attracted to the financial benefits available in the adult pornography industry. The burden must be on the producer to verify that all performers and subjects in its depictions are of age. Congress’s determination that the most effective way of imposing that obligation on producers—and of ensuring their compliance—was through a universal record- keeping law, was reasonable." [Emphasis added]

Having already denied plaintiffs' experts' conclusions regarding the amount of privately-produced sexually explicit content out in society, it's of course easy for Baylson to dismiss that material's role in the overbreadth determination.

But for Baylson, the nail in the overbreadth argument's coffin is his rejection of the Third Circuit's clear finding that "the word 'producer' in Sections 2257 and 2257A extends to individuals who produce sexually explicit depictions even for purely private, noncommercial purposes," and even its ruling rejecting the government's "limiting construction" (that it won't apply 2257 to any material not "intended for sale or trade") that "limiting constructions are not available where they require 'rewriting, not just reinterpretation' of the statute."

"Based on the factual record now developed, if this Court could analyze the issue on a clean slate, it would endorse the view presented by the government on appeal that depictions made for purely private, noncommercial uses are not—and never were intended to be—captured by the Statutes," Baylson wrote.

This, of course, would be directly at odds with the Supreme Court's ruling in U.S. v. Stevens, the dog-fight video case, where the high court held that no matter how sparingly the Justice Department said it would enforce the ban on such videos, the Constitution doesn't allow people to be subject to, or exempt from, laws based on the largesse of the Justice Department.

Actually, Baylson does deal with the Stevens case later in his ruling, but claims it doesn't apply to this case because "one of the factors leading the Court to such a conclusion was the history of inconsistent enforcement of the statute at issue; the petitioner himself had been indicted for selling videos of dogfighting, while the government had initially stated it would only apply the statute to depictions of extreme cruelty," while "Here, the government has maintained a consistent position for over 20 years (since Section 2257 was first enacted in 1988) that the Statutes will not be applied as to private communications, and there is nothing to suggest they have wavered from this stance. The fact of the matter is that the government could not enforce the Statutes as to private communications even if it desired to do so, because as Agent Lawrence explained, it would have no way of knowing of the existence of such communications." And besides, Stevens was about animals; this case is about (theoretical) kids appearing in adult movies!

"That said, this Court cannot interpret Sections 2257 and 2257A on a blank slate," Baylson continues. "It is bound by the Third Circuit’s determination that 'producer' reaches private persons—be they husbands-and-wives, persons in dating relationships, or strangers exchanging information to potentially date one another—who produce and share sexually explicit depictions with each other for private, noncommercial purposes. Still, the Court declines to find Plaintiffs have succeeded in their burden of proving facial overbreadth as a result of the Statutes’ applications to private depictions."

And how does he do that? By dismissing Drs. Drouin's and Zimmerman's estimates of how much privately-produced sexual material is out there, not to mention all of the evidence plaintiffs introduced regarding sexually explicit content on social networking sites, and by his claim that plaintiffs "have not demonstrated any actual burden on individuals who engage in such communications, or any realistic probability of enforcement as to such persons"—another direct affront to the Third Circuit's holding and the Supreme Court's Stevens decision!

"To show facial overbreadth, a plaintiff must show there is a substantial amount of speech actually being burdened or chilled by a law which in turn does not implicate the government’s interest underlying that law," Baylson writes. "Rather, there must be 'a realistic danger' that third parties will be chilled from engaging in protected expression, because the law could conceivably be applied to their conduct."

In other words, the fact that most people aren't even aware of 2257's existence means that they can continue posting, sexting, Skyping and emailing their explicit photos without any worry that they're actually breaking a law that could put them in prison for two to five years—because if they did know, it could chill their speech... and prove the plaintiffs' overbreadth assertion!

In dismissing the allegation that private sexual speech would be chilled, Baylson refers to U.S. v. Williams, the "child porn advertising" case where the Supreme Court rejected a "hypothetical" construction of the statute that could apply to ordinary citizens providing child porn evidence to police, and even to plaintiff attorney Mike Murray's Connection Distribution case, where the Sixth Circuit en banc panel argued, "The middle-aged couple is not likely to be chilled by the statute. Over twenty years and numerous administrations, the statute has never been enforced in this setting, and the Attorney General has publicly taken the position that he will not enforce the statute in this setting"—again, flying in the face of the Supreme Court's ruling in Stevens.

"No Plaintiff witness, including Plaintiffs’ experts, testified that in the general population at large, sexting or other methods of privately exchanging sexual depictions are being curbed by the Statutes," Baylson writes. "To the contrary, several witnesses for Plaintiffs stated they do not think private persons even know about the Statutes’ existence or have any sense they are technically (under the Third Circuit’s construction) required to comply with them when they send each other sexually explicit content." [Emphasis added]

Wow! So ignorance of the law is an excuse! Who knew? And of course, FBI agents Stephen Lawrence and Charles Joyner testified that they would never, ever target "purely private communications."

It's noteworthy that after Baylson gets done distinguishing this case from the Stevens case, he launches into an argument that the National Security Administration (NSA) would be happy to adapt to its justification for spying on American citizens without warrants: "The utterly depraved nature of child pornography is so revolting to a civilized society that there are no comparisons. It is absolutely devoid of merit or justification. The revulsion of Congress to the practice must be respected by judges; the dangers of its possession and circulation must be treated with the utmost sensitivity. A court should tread most carefully in considering facial challenges to anti-child pornography laws. A judge should invalidate such a law only if there is a 'realistic danger that the statute [] will significantly compromise recognized First Amendment protections'."

In other words, constitutional rights under the First and Fourth Amendments aren't worth shit in comparison to the plaintive pleas bleated by every anti-porn zealot on earth: "Please, God, won't somebody think of the children!" It doesn't matter that even in the 29 inspections the FBI has already done, not a single underage performer was found, and that common sense should tell anyone that adult producers wouldn't use kids even if they wanted to, because child pornography is against the law, and is a much bigger bust than 2257!

And if by chance the government should bust private citizens for creating their own sexual content? No problem!: "This does not leave a hypothetical private couple—who does in fact feel their First Amendment rights are being unreasonably curbed by the Statutes’ record-keeping requirements—without a remedy. Such individuals could bring an as-applied challenge." (Right; as if the U.S. court system is ready to handle 20 million as-applied challenges!)

Finally, Baylson turns to plaintiffs' Fourth Amendment "invasion of privacy" and "unwarranted search" claims, though he first spends a few paragraphs rejecting government claims that since the inspection program was shut down in 2008, the plaintiffs don't have standing to bring the issue before the court: "The plain operation of the Statutes—which instruct Plaintiffs to maintain records and to make them available to inspection by the Attorney General 'at all reasonable times'—creates enough of a threat of future inspections that Plaintiffs have standing to request injunctive relief."

"The first question before the Court on remand, as directed by the Third Circuit, is whether the inspections authorized by the Statutes amount to 'searches' that implicate the Fourth Amendment," Baylson writes. "Based on the record developed at trial regarding the inspections effectuated in the past, the Court concludes the answer is yes," noting that previous inspections "extended to areas in which there was a 'reasonable expectation of privacy'" and "involved common law trespasses that would trigger the Fourth Amendment under [U.S. v.] Jones," where police had illegally placed a GPS tracker on a private individual's vehicle.

But don't break out the champagne yet: "The next question before the Court on remand is, given that the inspections authorized by the Statutes implicate the Fourth Amendment, whether they satisfy the 'administrative search' exception to the warrant requirement," which exceptions have been granted for "commercial enterprises operating in 'closely regulated' industries, 'where the privacy interests of the owner are weakened and the government interests in regulating [the] particular businesses are concomitantly heightened."

Of course, the adult industry, despite the many obscenity laws, is hardly "closely regulated"; in fact, government agents for the most part wouldn't want to be caught dead on an adult producer's premises.

But never mind that: "Turning to the present case, the Court concludes 'producers' of sexually explicit depictions as defined by Sections 2257 and 2257A constitute a 'closely regulated' industry for the purposes of the administrative search doctrine. A 'closely regulated' industry is one that has been 'long subject to close supervision and inspection,' such that the privacy expectations of businesses in the sector are reduced."

See? Bet you adult producers didn't know you've been "closely supervised and inspected" by the government all these years, didja? Little did you know that all the government needed to prove that "close supervision and inspection" was the fact that it passed child pornography laws 30 or so years ago, passed 2257 almost 25 years ago, and even though adult productions are completely legal unless ruled obscene, and even though the DOJ didn't see fit to inspect adult businesses at all until 2005, "it was the pervasiveness of laws aimed at ensuring the industry’s practices did not undermine the safety of the public, which justified the reduced privacy expectations of the businesses. And here, federal anti-child pornography laws are similarly extensive."

See? Who knew that "supervising" and "inspecting" an industry meant that the government hardly ever had any direct contact with its members! (And let's not even get into the question of whether all that alleged "supervising" and "inspecting" is any indication that 2257 is a content-based restriction!)

Turns out there's a three-pronged "Burger test" that decides whether a warrantless inspection is legit or not, the first and third prongs of which are "whether there is a 'substantial' government interest that informs the regulatory scheme" and "whether the application of the inspection program provides 'a constitutionally adequate substitute for a warrant,' because the statute or regulations inform businesses that 'inspections will be made on a regular basis' and limit the inspections in time, place and scope." (Yep, zero inspections from 1988, when 2257 was first passed, to 2006 when the first inspections took place, sure sound like a "regular basis" to us.)

Anyway, "These two factors are satisfied with respect to the inspections authorized by the [2257] Statutes," Baylson rules... but it's that second Burger prong—"whether the warrantless nature of the inspection program is 'necessary to further [the] regulatory scheme'"—that Baylson finds to be a problem, at least as far as inspections of records in private homes is concerned.

"Here, the record does not demonstrate that the unannounced aspect of warrantless inspections is as critical to '[the] regulatory scheme' in Sections 2257 and 2257A as it was in [other cases]," Baylson writes. "The key difference is that unlike the former cases, where there was a concern that the regulated entity would conceal or destroy an improper condition at the 11th hour, the records mandated by the Statutes are so extensive that they cannot realistically be manufactured on the eve of an impending search. Both FBI agents testified that it was highly unlikely that a producer could assemble Section 2257 records within 24-hours’ notice of an inspection. Further, in about nine of the 29 inspections conducted in 2006 and 2007, advance notice was given, to ensure the producer or custodian of records was on site when the FBI team arrived, and there is no evidence that it undermined the integrity of those inspections."

Yay! The industry won one! Now, before they invade your privacy for no good reason, they have to announce that they're about to do it.

Whoops; not so fast!

"[T]he record also demonstrates that the ability of the FBI to show up at a producer’s bona fide residence—if that is where the producer maintains his Section 2257 records—imposes significant burdens on such persons," the court states. "It means the producer must be available at his home for at least 20 hours a week, even if he or she does not otherwise use the home as an office. It means the producer must be ready to welcome [sic] a team of FBI agents into the home for several hours at a time, even if his or her family or friends are there or personal items are strewn about. Some Plaintiffs, such as Thomas Hymes and David Levingston, have curbed their otherwise First Amendment protected activities to avoid triggering the Statutes’ record-keeping requirements altogether, because they do not want to absorb the cost of using a third-party custodian, but they also do not want to be available at their homes 20 hours a week."

"Given these two streams of evidence in the record—demonstrating advance notice would not undermine the regulatory scheme, but a lack of such notice significantly burdens producers who maintain records at home—the Court finds the regulations’ lack of a notice requirement, as to searches at bona fide residences, unreasonable under Burger. The special status of the home in this country’s constitutional doctrine reinforces this conclusion."

Okay; so it's only homeowners who get advance notice of inspections—but even that's not limiting enough for Baylson. He's also got to make sure to note that just because the FBI can't mount unannounced home invasions anymore doesn't mean that 2257 is invalid under the Fourth Amendment, and also the fact that the 2257 regulations say that "[a]dvance notice of record inspections shall not be given" isn't a problem with the statute, just with the regulations, even though the search itself is, according to Baylson, legal under the Fourth Amendment.

Still, here's an interesting admission: "A conventional search warrant would require probable cause that a crime has occurred or is about to occur—and here, the whole regulatory scheme would fall apart if the FBI needed probable cause to believe a producer wasn’t keeping adequate records, before it could undertake a search." Apparently, in terms of the Fourth Amendment, it's of no importance that there's unlikely to be underage performers discovered through a 2257 search, and therefore, any judge asked to issue a search warrant on the basis of alleged underage performers could very well deny it based on lack of probable cause. As far as Baylson's concerned, whether the FBI suspects that underage performers are in the inspected company's products is immaterial; the only Fourth Amendment question for him is whether the FBI suspects that records aren't being kept.

And besides, "Although the Court is aware of a number of cases in which the Third Circuit has required administrative warrants, they did not involve records inspections. Careful research has not revealed any Supreme Court or Third Circuit case where a judge has ruled an administrative search warrant is required merely for a record inspection." And Baylson is damned sure he's not going to be the first judge to rule that it is.

Oh; and not only does the government have to provide notice to the homeowner of an impending search, it's got to make sure the homeowner actually gets that notice: "Not all producers stay at home seven days a week; many routinely travel for business or pleasure. Assuming that a producer has correctly noted the address at which the records are stored in the Section 2257 label, the government must first make the producer aware of an intention to inspect the records, and then give adequate and reasonable time for the producer to return home for the inspection."

Of course, if it's easier, the recordkeeper could just bring his/her records to the local FBI office for inspection, or mail them in, and in three of its previous inspections, the FBI allowed producers to do just that.

But that's really neither here nor there.

"The Court declines to grant Plaintiffs injunctive relief" regarding its Fourth Amendment claims, Baylson writes. "A court should grant permanent injunctive relief only where the plaintiff has demonstrated: '(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.' ... Under the factual record developed at trial, the equitable remedy of an injunction is not warranted at this time."

Why? "The evidence shows the government has not conducted a Section 2257 inspection since 2007. Rather, the FBI dismantled the inspections program in early 2008, and there has been no intent or effort to revive it. It is moribund. As a result, Plaintiffs do not face a realistic threat of 'irreparable harm'—due to an inspection—at any point in the foreseeable future. A judge must take a deep breath before enjoining the nation’s top law enforcement officer from doing something that the Department of Justice has shown no interest in doing for the last six years. Under these circumstances, the Court believes it would be an abuse of discretion to enter an injunction against the Attorney General." [Emphasis added]

Yeah; just because they haven't done some illegal thing for the past six years doesn't mean a federal judge should prevent them from ever doing it again! But, he says, if they do try to do an inspection in the future without first announcing it, "a producer could bring a lawsuit requesting an injunction at that time."

So there you have it: The federal recordkeeping and labeling laws are upheld in their entirely, except that the DOJ will have to rewrite one tiny part of the regulations, and barring an appeal (which we're pretty sure will be filed if Free Speech Coalition and the other plaintiffs have enough money to do so!!!), the government is free to barge into adult businesses searching for non-existent child performers, and to force producers (especially secondary producers) to spend tens of thousands of dollars keeping records that say kids aren't in their productions when any sane person would know that kids aren't in their productions because child pornography is against the law!

The full text of Judge Baylson's Judgment in the case can be found here, and his Memorandum: Findings of Fact and Conclusions of Law can be found here.

Donations to Free Speech Coalition to continue its fight against this onerous government intrusion into adult producers' lives can be made here.






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