Justice Department Seeks Rehearing of 2257 Decision

Justice Department Seeks Rehearing of 2257 Decision

PHILADELPHIA — The Justice Department yesterday filed a brief with the 3rd U.S. Circuit Court of Appeals, seeking a rehearing over the recent appellate ruling involving 18 U.S.C. §§ 2257 and 2257A, the federal statutes that govern performer record-keeping for sexually explicit content.  

In June, in a big victory for the plaintiffs — adult entertainment trade group the Free Speech Coalition and various performers and industry stakeholders — the 3rd Circuit vacated and remanded a lower court’s July 2013 ruling that held that record-keeping for adult producers was constitutional.

The win for the plaintiffs, and consequently all adult entertainment producers, was hailed by many at the time as one of the greatest adult industry victories in decades.

The  3rd Circuit ruling, left intact, would sent the case back to U.S. District Judge Michael Baylson’s courtroom in Philadelphia for reconsideration.

That reconsideration would centrally focus on whether the statutes withstand “strict scrutiny,” which presumes a law to be invalid unless the government can prove the law's constitutionality and demonstrate a compelling governmental interest in keeping it.

Yesterday, the Justice Department filed a 21-page brief seeking a panel rehearing and rehearing “en banc,” or before the entire bench. Many of its points it made were a rehashing of the case.

The Justice Department said that its petition should be granted because the 3rd Circuit panel’s holding that the record-keeping statutes are subject to strict scrutiny conflicts with two other federal appeals courts and that is contrary to the U.S. Supreme Court’s decision in City of Renton v. Playtime Theatres Inc.

The U.S. Supreme Court held in Renton in 1986 that cities may impose regulations prohibiting adult theaters from operating within certain areas, finding that the regulation in question was a content-neutral time, place and manner restriction for purported “secondary effects.”

But the 3rd Circuit court in June focused on a new U.S. Supreme Court case to guide its decision — Reed v. Town of Gilbert.

“In light of Reed, we determine that the statutes are content based, and therefore require strict scrutiny review under the First Amendment,” the 3rd Circuit panel said in June.

In its petition yesterday, the Justice Department, however, said that nothing in the Supreme Court’s opinion in Reed indicates that it was intended to have “the sweeping effect given to it by the panel majority.”

“The court in Reed purported to apply longstanding precedents, and it left wholly untouched (and, indeed, unmentioned) the secondary-effects line of cases,” the Justice Department said in the petition. “Even if there is tension between Renton’s secondary-effects doctrine and the content-neutrality discussion in Reed, that tension provides no basis for concluding that the Reed court overruled Renton by implication or limited it to its facts. 

Renton’s secondary-effects rule more directly applies to 18 U.S.C. §§ 2257 and 2257A than Reed, and Renton requires the application of ‘intermediate scrutiny.’”

To pass the intermediate scrutiny, the record-keeping statutes must further an important government interest by means that are substantially related to that interest.

“The panel erred in holding otherwise, and the full court should correct that error,” the Justice Department said.

View Justice Department's petition for rehearing

Related:  

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

Beca Barbie Makes Her Hookup Hotshot Debut

Beca Barbie has made her debut for Hookup Hotshot alongside Nade Nasty.

2025 XBIZ Amsterdam Website Launches With Call for Speakers

XBIZ is pleased to announce that the website for its annual European conference, XBIZ Amsterdam, is now live.

NC Governor Vetoes Bill Targeting Adult, Could Face Override

North Carolina Governor Josh Stein today vetoed a bill imposing new regulations that adult industry observers have warned could push adult websites and platforms to ban most adult creators and content.

Valerica Steele Headlines Jonni Darkko's 'DVP Sluts'

Valerica Steele toplines director Jonni Darkko’s “DVP Sluts,” from Evil Angel.

Michael Ninn Returns With 'Catherine' Sequel Made Entirely by AI

Veteran filmmaker Michael Ninn, though retired from the adult business for the past 10 years, recently unveiled a new episodic project titled "Catherine II: The Series," which serves as a sequel to his 2005 adult film "Catherine."

25,000 Sign Petition to Legalize Pornography in Ukraine

An OnlyFans model’s petition to decriminalize pornography in Ukraine has amassed the 25,000 signatures required for official consideration by President Volodymyr Zelensky.

WannaCollab Joins Pineapple Support as Supporter-Level Sponsor

WannaCollab has joined the ranks of over 70 adult businesses and organizations committing funds and resources to Pineapple Support.

Alison Rey Stars in Latest From New Sensations

Alison Rey stars with Isiah Maxwell in the latest release from New Sensations.

FSC Unpacks SCOTUS Age Verification Ruling in Webinar

The Free Speech Coalition conducted a public webinar Tuesday to help adult industry stakeholders understand the Supreme Court’s recent decision in FSC v. Paxton, and its potential implications.

Bad Bella Fronts Latest From MYLF

Bad Bella stars with Hayden Wild in the latest release from MYLF.

Show More