3rd Circuit Hears Argument in Appeal of Trial Court's 2257 Opinion

PHILADELPHIA, PA—At 2 p.m. Tuesday afternoon, a three-judge panel of the Third Circuit Court of Appeals heard arguments from both the Plaintiffs and the government in the case of Free Speech Coalition, et. al. v. Attorney General of the United States. Arguing for the 16 Free Speech plaintiffs was J. Michael Murray, while the Attorney General was represented by Deputy U.S. Attorney Anne Murphy, one of the authors of the government's appeal brief in this matter. The Third Circuit panel consisted of the same three judges who heard FSC's original appeal after Judge Michael M. Baylson dismissed FSC's case more than three years ago—Judges D. Brooks Smith,, Judge Marjorie O. Rendell and Judge Anthony J. Sirica—in the Albert Branson Maris Courtroom on the 19th floor of the Thomas A. Byrne Federal Courthouse, 601 Market Street in Philadelphia—and it's one the judges were clearly interested in, which Judge Rendell made clear when she opened court by noting that, "We specially scheduled this case," meaning in part that it was the only appeal they would hear that day, and as they did during the previous appeal argument, the judges gave each side a few extra minutes in addition to the allotted 20 to make its case. Murray was the first to take the rostrum, and began his argument by noting that the evidence adduced at trial demonstrates that the federal record-keeping and labeling laws, 18 U.S.C. §§2257, 2257A and the regulations attendant to them, fail the narrow tailoring test that the Supreme Court has imposed on laws affecting speech that has been determined fall under "intermediate scrutiny." Murray made specific reference to the 2014 Supreme Court decision in McCullen v. Coakley, which struck down the 35-foot buffer zone around women's clinics that the state of Massachusetts had imposed on anti-abortion demonstrators, with the high court finding in that case that that fixed distance was an unconstitutional infringement on the protesters' speech rights. Murray argued that the protesters' right not to be burdened by the distance requirement in approaching those entering women's clinics and speak to them was essentially similar to adult content producers' and others' right not to be burdened by the sometimes-arcane requirements of the 2257 laws and regulations, most notably the requirement that producers keep age verification records on performers who are obviously adults—Nina Hartley's name was mentioned—as well as the right not to be searched without a judge's finding of probable cause to conduct such a search, and the fact that producers, including individuals who post explicit or lascivious photos to contact sites like Adult FriendFinder or simply "sext" their partners and friends, need to be available 20 hours per week in case the government wanted to search their identification records, or in the alternative, to tell the government which 20 hours per week they would be available—all under threat of being tried as felons for failing to keep such records and schedules. But Murray barely got his first words out before the panel started asking him questions, many based on arguments found in the parties' appellate briefs. For example, Judge Smith asked how the panel could decide whether the law was narrowly tailored enough to pass constitutional muster without looking at each of the individual plaintiffs' particular situations, while Judge Sirica seemed more concerned with whether there needed to be the same rules for commercially produced explicit content versus individuals who sext or Skype explicit imagery to other individuals—an issue that Judge Smith also wanted answered. Murray responded by directing the panel's attention to the testimony of attorney and Free Speech Board Chair Jeffrey J. Douglas, who had told the trial court that there hadn't been a single instance of an underage performer appearing in an adult-industry-created movie in many years, in part because legitimate adult producers always check the photo ID documents of everyone they shoot. Still, Judge Smith argued that the Plaintiffs had taken a "highly aggregative approach" in filing the lawsuit together, and asked if both sides were not in fact advocating that some sort of balancing test needed to be applied to diverse types of images—and whether that comparison should be numerical or quantitative, both of which types figured heavily in the trial of the case? In fact, the judges seemed miffed that there was so much quantitative and numerical evidence brought out, even though they themselves, in their first hearing on the case, had specifically instructed that the trial cover those issues! Murray argued that very point, adding that what that evidence showed was that the majority of sexually explicit images are of people who are obviously adults. Judge Rendell noted that the panel would need to compare the number of sexually explicit images (or at least the percentage of them) that would implicate government scrutiny because of their subjects appearing to be, perhaps, underage, with the number or percentage of explicit images which no one would mistake for containing underage subjects. Murray was ready with the answer, quoting one of the government's own expert witnesses, Dr. Gail Dines, to the effect that of all the images she scoured the internet to find, just one-third were of adults who looked like they could be minors, while two-thirds did not. But that clear distinction didn't satisfy Judge Smith, who queried whether Murray didn't think one-third was "substantial" for narrow tailoring purposes? Judge Rendell added that Dr. Dines had testified that her searches of the internet for "teen porn" had yielded half of the explicit images she saw, but Murray noted that Dr. Dines' search had been for explicit images identified as "teen" and similar terms, which had resulted in the one-half figure. Judge Rendell then wanted to ask about the effects of 2257 on people who sext, but Judge Smith interrupted to ask why so much had been made at trial about images of people 25 and older versus those 24 and younger? Murray replied that that was based on the testimony of Dr. Francis Biro, who had said that in his study of body and facial types, he felt that only those over 25 years of age could safely be deemed to be adults just from looking at their images. However, Murray noted, the law's ID requirements mostly apply to people who don't even look like minors. That answer seemed to inspire Judge Smith to question which of the 2257/2257A regulations the Plaintiffs felt they were being particularly burdened by, and again, Murray was there with the answer, citing plaintiff David Steinberg's inability to be the American representative for a European sexually explicit magazine because the European publishers didn't keep identification documents; the fact that plaintiff Betty Dodson was forced to take down from her website her "genital art gallery" photos of sexual organs because they couldn't be identified as belonging to adults; and plaintiff Carol Queen's collages couldn't be exhibited because she didn't know the ages of the people pictured in the scraps of paper she used to create her artwork. Judge Rendell admitted that it would be easier to find that the record-keeping laws chilled protected speech if all of the images were of 30, 40 and 50-year-olds. Indeed, Murray argued at that point that the only legitimate purpose for 2257 would be to eliminate child pornography—except that child pornographers don't keep such records. On the other hand, if Congress had passed a law requiring only that adult producers check the IDs of performers and keep a copy of such IDs, the Plaintiffs would have no problem with that law—but that 2257 requires much more than that. But Judge Smith had a problem getting his head around why any of the 2257 regulations would be considered burdensome, if the producers were going to keep copies of performers' IDs anyway. Murray pointed out that keeping performers' IDs was the least of sexual image producers' worries. He noted that people who sext and others who create non-commercial sexual imagery are required under the 2257 laws to put their home addresses on every image and to tell the Department of Justice which 20 hours per week they will be available in case government inspectors want to examine their (likely non-existent) 2257 documents. Picking up on that thought, Judge Rendell asked Murray if he thought that all sexual pictures would trigger the statute's requirements, noting that mere nudity was exempt. Murray replied that 2257 also covered "lascivious exhibition of the genitals," and that many of the non-commercial images could easily fall under that requirement. Judge Sirica then turned his attention to the issue of the warrantless searches allowed by 2257, and brought up the issue of whether such searches weren't allowed under the accepted doctrine of "administrative searches." Murray noted that there was no restriction within the law that prevented non-commercial "producers" of such images from being searched, and that there was no way that the search of a person's home could be considered "administrative." But when Judge Smith opined that since 2257 searches were so limited that adult producers should accept them rather than forcing the inspectors to obtain warrants, Murray pointed out that whether or not it was easier to just search without a warrant, the Fourth Amendment rights of those being searched were still being violated. He also noted that many of the plaintiffs were "one-man operations," but that under the law, they nonetheless had to be present at their records' location for at least 20 hours per week during regular business hours, or in the alternative, send a letter to the FBI stating just which 20 hours per week they would be available—and that in any case, the First Amendment bans pervasive regulation of a constitutionally permitted industry, adding that the adult content industry isn't making child porn and those that are making child porn aren't keeping any records that could be inspected! But Murray had reserved four of his allotted 20 minutes of argument for rebuttal, so his time was up and Anne Murphy stepped to the rostrum to make the government's case for keeping the 2257 laws and regulations on the books. Murphy began by noting that the "as-applied" challenges to 2257 had been brought by the individual plaintiffs, with the adult industry relying mainly on facial challenges to the law, mainly in the area of overbreadth—but that Judge Baylson didn't spend much time looking at the numbers of those affected, and in response to a question, she said the judge didn't feel that it should be a "numbers game." However, Judge Smith quickly got to the meat of that issue by asking how the 2257 requirements and regulations stopped child porn when most of the people to whom the requirements applied were obviously adults? Murphy responded by arguing that the district court had said that the requirements were applicable to specific producers who used young-looking models, avoiding the fact that nearly all adult industry producers use them. And when Judge Sirica asked whether those (presumably limited) producers should be the focus of the law, Murphy back-pedaled a bit by stating that the government couldn't be sure what any producer would do in the future. She also noted that several of the images in question consisted just of body parts (like Dodson's "genital art gallery") and that even experts like Dr. Biro couldn't tell whether those parts belonged to adults or children. He argued that the government would need to know that. And when Judge Smith wanted to know if there was an age above which the government would agree that an image of a person that age couldn't be a minor, Murphy returned to the body parts that Dr. Biro couldn't identify the ages of, and argued that this uncertainty was a risk that the government wanted to avoid through the 2257 laws. Judge Rendell, however, seemed inclined to explore that argument, noting that in society today, there is a proliferation of sexual images, and questioned whether it wouldn't be a problem if many of those images were caught up in 2257 record-keeping. Murphy admitted that that could potentially be a problem, but that the district court (aka Judge Baylson) had held that the Plaintiffs had not shown that such was currently the case with them themselves. But Judge Rendell pressed on, asking if the government would be willing to concede that, considering the sheer number of sexy images found all over society today, the 2257 laws and regs should not apply to the vast majority of them. Murphy admitted that even Judge Baylson had agreed that most of the images referenced by Judge Rendell would be constitutionally protected, but seemed to take issue with the idea that many images in society would trigger 2257 compliance in any case, saying that the content of those images would be seen differently by different people. She also stated that the record in the case was devoid of evidence that non-commercial producers of sexy images were being targeted at all by the law, and that it was up to the Plaintiffs to have made such a record. But when Judge Smith questioned whether enough of that evidence had been adduced at trial, Murphy distinguished between the two types of challenges being discussed—facial and "as applied"—and stated that the effect of the 2257 laws on non-commercial producers had not been sufficiently explored at trial. She also voiced disagreement with Murray's statements that 60 [sic] percent of the images to which 2257 had been applied were adults, citing both Dr. Dines' testimony as well as Judge Baylson's acknowledgment that older and younger models often appeared in the same movie. To clarify, Judge Smith asked Murphy whether she was saying that the government would not prosecute non-commercial producers if it thought they were violating the 2257 laws, and Murphy assured him that that was not what she was saying. Judge Rendell returned to the question of the warrantless searches, saying that she had a problem with seeing them as administrative searches, but Murphy's response was to argue, incredibly, that the Plaintiffs had no standing to raise that issue because Judge Baylson had found that the 2257 searches are "unlike normal searches," in that only records, and not anything else, are being inspected. "But you go into homes," Judge Rendell stated, apparently mystified by that line of argument. But Murphy repeated her position that the Plaintiffs didn't have standing to raise the issue, especially because she believed that nowadays, most companies keep their records in electronic form on computers, and the 2257 files could be transmitted to inspectors electronically with no need for the inspectors even to visit a company's premises. But when Judge Rendell again raised the issue that the searches as allowed under 2257 clearly violated Fourth Amendment search-and-seizure protections, Murphy allowed that the regulations might have to be rewritten, even though she stated that the trial had shown that the searches that had taken place were very limited. Both Judges Rendell and Smith voiced problems with the 20 "hours of operation" availability requirement, and when Murphy tried to deflect the question by stating that there hadn't been any inspections since 2008, Judge Rendell noted that they "could resume tomorrow," leading Murphy to backpedal even more by stating that the searches weren't very extensive anyway, and repeating that the companies could simply provide electronic records, which would be easier yet still legal. Still, Judge Rendell pressed, aren't the searches and hours of operation requirements unconstitutional? Murphy admitted that the regulations weren't always followed exactly by the inspectors, which led Judge Rendell to opine that maybe new regulations were needed, and Murphy to respond that they were now talking about the regulations, not the statutes themselves. Judge Smith chimed in to note that often, the inspectors had given the companies notice that they were coming, and Murphy agreed that that was very reasonable of them to do so. Finally, Judge Sirica asked what the panel could do besides striking the regulations entirely, and when Murphy said "Rewrite them," Judge Rendell jokingly asked if she meant narrowing the 20 hours record-keepers had to be available for inspectors down to two, but Murphy admitted that she had "no satisfactory answer." But now Murphy's time was up, Murray was back in the hot seat, and he wasted no time expanding on the panel's problems with the warrantless searches. Not only were they unconstitutional under the Fourth Amendment, he said, but that under the law, refusal to allow inspectors onto the premises was a felony—and contrary to Murphy's suggestion that the searches had been very limited in nature, Murray reminded the panel that the testimony had been that the inspectors had occupied the searched premises for hours, and in contrast to simply collecting and examining records, they had also taken pictures of the area—photos which had nothing to do with examining records for underage performers. Murray also took issue with Murphy's claim that Plaintiffs had put on little evidence regarding the overbreadth question, noting that just two exhibits accompanying the Plaintiffs' appeal brief contained hundreds of pages of websites with photos and videos by non-commercial producers that would fall under the 2257 requirements, stating that the website Adult FriendFinder alone had millions of posts per month of images or videos that would trigger 2257 oversight. Judge Smith then asked Murray to comment on the fact that the government has claimed that 2257 is "profoundly important policy," and asked how the evidence produced by Plaintiffs would overcome that? Murray responded by referring to the testimony that millions of Americans who post non-commercial images are still burdened by the record-keeping and labeling requirements, which he deemed to be vastly overbroad, considering that, to use his example, when a husband and wife take explicit photos or videos of themselves, they already know how old they are, so they don't have to keep separate records of their own IDs, nor should they have to spend 20 hours of the work week at home waiting for 2257 inspectors to call on them. Plus, he noted, it's not as if those images/videos are illegal—but the do violate the 2257 requirements and the posters could wind up in court because of that. Judge Rendell quibbled that that would only apply if they posted the images knowingly, which seemed to confuse Murray a bit. He noted that under 2257, the identification records must be maintained, whether the posters knew about the regulations or not, but that certainly, those posting sexually explicit images on the internet were well aware that they were "knowingly" posting those images; what they didn't know, however, was that under 2257, they were felons for doing so. But at that point, Murray's reserved four minutes were up—in fact, the panel had allowed him nearly double that amount—and the hearing was adjourned. After the hearing was over, Murray assessed the hearing by saying, "It was a very, very spirited argument. I thought the court had some very challenging questions both for our side and for the government. I think that we were able, ultimately, to make some very strong points. There was some spirited argument, particularly on the Fourth Amendment issue and the narrow tailoring issue, but of course, no one can ever predict what a court is going to do, and we will continue to advance what we think is the cause of liberty here and our argument that the 2257 statute is unconstitutional ... so stay tuned!" As those who have been following this litigation will recall, the last time the appeals panel heard argument in this case, it took them several months to issue their opinion, and it's unlikely to take much if any less time this time. One of the factors that may influence that timing is the fact that Judge Scirica has retired to "Senior" status, and Congress has yet to approve his replacement on the Third Circuit bench. But when that decision comes down, AVN will be here with an analysis.