PHILADELPHIA — Yesterday’s ruling by the United States Court of Appeals for the Third Circuit represents a clear victory for the Free Speech Coalition (FSC) and co-appellants in their decade-long fight against the unusual, punitive 2257 record-keeping requirements and inspections targeting the adult industry.
As of yesterday, the odds for a successful standalone 2257 prosecution of an adult entertainment producer have been reduced dramatically, according to a consensus of legal experts.
“It doesn’t end 2257, but it severely injures it,” a legal observer described to XBIZ.
But although the FSC and the other original plaintiffs — including fellow trade association American Society of Media Photographers, legendary performer Nina Hartley, noted art photographer Barbara Nitke and several other producers of erotica — have reason to celebrate the decision, this is an important step in the legal challenge against this burdensome legislation — but not the final step.
“What the decision doesn’t say, unfortunately for the adult community,” the legal expert continued, “is that 2257 is dead and cannot be saved.”
The U.S. Government, trying to defend the current statute regarding 2257 record-keeping requirements and inspections, has three options after this ruling, and it is not clear whether they would leave yesterday’s decision alone.
2257 Gutted, Not Struck Down
The case was argued a year ago, on September 12, 2019, and the Third Circuit decision, by a panel comprised of Judges Chagares, Jordan and Restrepo, was filed yesterday.
A close reading of the decision shows that the 2257 statute was, in legal parlance, gutted, but not struck down in its entirety.
First, the Government can petition the same panel for a rehearing, claiming the judges missed a factual or legal point. The plaintiffs themselves requested a rehearing earlier during this litigation after Supreme Court cases had come down that they considered relevant for their case.
The government may also opt for requesting an “en banc” review by the entire Third Circuit. En Banc, French for "on the bench,” is the legal term for when all judges of a particular court hear a case.
The third option would be an appeal to the Supreme Court, which would have been the likely outcome if the panel had struck the 2257 legislation outright. The Supreme Court, legal sources commented, rarely allows a federal statute to be struck down in full before reviewing it.
These three options could be requested by the government, but their acceptance is at the discretion of the Third Circuit or the Supreme Court.
No Warrantless Search
At the constitutional level the most remarkable thing about the decision is that it endorses the Fourth Amendment challenge that the FSC and the other plaintiffs had presented, and which, for some reason, the government never appealed.
The Fourth Amendment states that “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.”
Prior to this litigation, according to the wording of 2257, any law enforcement agency designated by the AG — so far it has been one, the FBI — without prior notice and not based on any facts about a particular company could go to the location where the records are kept, including a private home, and demand to see the records without a judge’s warrant.
This blatant instance of warrantless search, what the Fourth Amendment was written to avoid, allowed the state to make the decision to inspect without any judge saying there was probable cause.
The decision effectively puts an end to standalone 2257 warrantless inspections, which had placed the adult industry under an unreasonable burden of scrutiny, and an unreasonable record-keeping regime going beyond what would be necessary to establish anyone is of age to perform.
The ominous threat of a felony prosecution because of flawed record-keeping alone (e.g., a misalphabetized file, a failing hard drive) was one of the most notable aspects of the 2257 legislation’s overreach and prejudicial treatment of the adult industry.
Unfair Targeting of a Legal Industry
Compared with other forms of record-keeping, the 2257 requirements and the potential punishments for clerical mistakes are decidedly unusual. For example, all U.S. employers are required to keep I-9 forms attesting to the citizenship status of employees. If the records are missing or incorrect and the employee is legally allowed to work, the employer can be fined $100. If the employee is not legally allowed to work, there could be more serious consequences. 2257, however, was worded to make flawed record-keeping itself a felony, regardless of the legality of the information provided on the form.
In practice, legal analysts say that there was a single period of several months when 2257 federal inspections occurred in 2006 in the San Fernando Valley. Over 30 companies were inspected, and many “record violations” were found. The inspections did not reveal, however, any minors had been employed, and the violations did not result in prosecutions.
There are, as industry advocates have pointed out for years, substantial deterrents for the production of child pornography already in the books. If someone knowingly films someone who is underage, regardless of 2257 record-keeping, there is a 15-year mandatory minimum prison sentence, plus registration as a sex offender for life and lifetime court supervision under a parole officer. In fact, it is already one of the most serious crimes there is on the federal books, and 2257 record-keeping does not provide any further disincentive to filming minors.
The industry’s record-keeping system is more of a protection for the industry from liability and would undoubtedly exist in some form without the threat of a standalone felony prosecution or unconstitutional warrantless searches.
Continue Keeping 2257 Records
Most industry lawyers are advising clients to continue 2257 record-keeping as it could take a year — or perhaps more — to find out the next step chosen by the government.
As the FSC put it yesterday in a brief statement touting their victory, “in the meantime, we urge that all producers continue to fully comply with existing 2257 regulations, as the scope has not been determined and the decision issued by the Third Circuit is still subject to appeal.”
But given the unlikelihood of warrantless inspections, a standalone prosecution over 2257 record-keeping, legal experts concur, seems almost impossible.
Of course, if a federal agency has specific information that a person is filming minors, and can convince a judge they have probable cause, they could obtain a warrant in the context of a federal obscenity investigation or a federal child pornography investigation.
For a 2257 standalone violation, the only way an inspection could happen after yesterday’s decision is if someone, for some reason, knows that a company is not keeping records and decides to blow the whistle on them, contacting authorities, who then would obtain a search warrant.
Secondary Producers
The decision also says that when it comes to secondary producers, they “assume, but do not hold” that the law is unconstitutional.
That makes it more likely that in the future, content distribution companies and third parties may not have to keep copies of 2257 records.
But as of now, this mountain of records and copies consuming terabytes of storage space, needing to be professionally backed up and secured, must be maintained to comply with the law.
A Precedential Decision
Although the FSC is celebrating this victory, the Third Circuit ruling did deny their standing, and that of the Association of Media Photographers, to sue on behalf of their respective industries. Thus the ruling strictly applies to the 10 producer plaintiffs.
However, the decision is deliberately “precedential” and it constitutes a published ruling that is law for the Third Circuit and influential everywhere else. In the highly unlikely chance there would be a standalone 2257 prosecution outside the Third Circuit, this precedent would render it even more unlikely to succeed.
That is why experts concluded yesterday that the ruling "does not end 2257, but it severely injures it."
