DOJ Challenges FSC Call for En Banc Rehearing on 2257

PHILADELPHIA—On Wednesday, the U.S. Department of Justice filed a response to Plaintiffs' Petition for Panel Rehearing and For Rehearing En Banc in the case of Free Speech Coalition, et al v. Attorney General of the United States, the lawsuit which sought to repeal 18 U.S.C. §§2257 and 2257A (hereafter "2257"), the federal record-keeping and labeling law. The petition was filed by First Amendment attorneys J. Michael Murray and Lorraine Baumgardner on behalf of Free Speech Coalition (FSC) and its 15 co-plaintiffs. The DOJ's 21-page Response to Petition For Panel Rehearing deals almost exclusively with plaintiffs' argument regarding the U.S. Supreme Court's recent decision in Reed v. Town of Gilbert, a case involving signs placed on telephone poles, street light poles and similar structures as well as in residents' front yards. A lower court had ruled that signs that were "ideological" or "political" were protected under the First Amendment, but that simple "directional signs," such as those announcing (as in Reed) the location of church services, had no such protection. The Supreme Court disagreed and overruled the Ninth Circuit's ruling in that case, instead finding that the town of Gilbert's distinction between the signs' purposes was unconstitutional. The controversy in the opposing petitions centers around whether the recordkeeping regulations are "content-neutral," meaning whether the government objective being sought is justified (and constitutional) without any basis in, in this case, the content of the material which is being regulated. Adult entertainment community members who produce explicit content, and who are required under 2257 to keep separate, detailed records and identification documents on each performer who appears in their content, would naturally find the suggestion that the recordkeeping has no connection to the type of content they produce to be ludicrous—and indeed, the Supreme Court in Reed would seem to agree. "[T]his analysis skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face," the Supreme Court stated in its opinion in Reed. "A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech." The government, however, has argued in its response that the Third Circuit's original ruling in 2013 which forced the case to trial after U.S. District Judge Michael Baylson had dismissed it was correct when it deemed that the 2257 law be considered only under intermediate scrutiny, a much lower legal threshhold. "Under Renton v. Playtime Theatres, Inc., and its progeny, laws directed at non-communicative 'secondary effects' of sexually explicit speech are subject to intermediate First Amendment scrutiny. The D.C. Circuit, the Sixth Circuit, and this Court have all recognized that the Statutes are subject to intermediate scrutiny because they are designed to forestall an especially pernicious secondary effect of the production and distribution of sexually explicit speech—namely, the sexual exploitation of minors," the DOJ attorneys argued. "The Supreme Court’s recent decision in Reed does not overrule Renton and does not address—indeed, does not even mention—Renton’s secondary-effects doctrine. Because Renton prescribes the use of intermediate scrutiny here, and because Reed leaves Renton’s authority undisturbed, Reed provides no reason for the panel to reconsider its original holding that the Statutes are subject to intermediate scrutiny." [Citations omitted here and below] The government's problem, however, is that its argument has no basis in fact. Mainstream adult content producers—the ones who actually keep records, as opposed to the fly-by-night, underground content producers who do make child porn, and who don't keep records—are already on notice that the use of a minor in their productions will bring the full weight of existing child pornography laws down on them, and considering that a first offense is good for five years in the slammer, keeping minors out of their productions would be a priority even without the 2257 law. Moreover, during the mid-2000s when the FBI was inspecting adult content producers for 2257 violations, of the 29 companies then inspected, the inspectors were unable to find even one underage performer in any of the records they studied. That in itself certainly suggests that minors appearing in legitimate adult content is hardly an expected "secondary effect" of making adult movies, and the chances of that occurring would be unaffected if 2257 were overturned. The government also seems to have a problem with the fact that the Reed decision doesn't even mention Renton—a local zoning case that had nothing to do with the specific content of adult movies or of child pornography—and argues that for that reason, Reed is inapplicable to the existing lawsuit. This argument ignores more than two centuries of Supreme Court decisions that  turned out to have had profound effects on American life and were only later noted to have altered the way then-current law looked at prior decisions of that same court. In other words, one decision doesn't have to reference another to nonetheless have an effect on the prior decision, and indeed, even the government mentions that "this Court may wish to make clearer its reliance on Renton’s secondary-effects doctrine," to which one might add, "if it has in fact done so." Much of the rest of the government's petition is devoted to justifying the view of 2257 as content-neutral and the consequent ruling that only intermediate scrutiny should be applied to consideration of the law. "The Statutes ban no speech and suppress no expressive content the images might convey; they simply impose recordkeeping obligations upon those who produce pornography," the government response argues, ignoring dozens of pages of testimony at trial where witness after witness testified regarding the tens of thousands of dollars of cost associated with amassing and keeping such records, when the simple act of a director looking at a performer's driver's license or passport would be just as effective. In analyzing the effect of the Reed decision on adult content, the government argues that, "The Court regarded the sign code as content-based under the First Amendment because it regulated speech according to its expressive content: 'The restrictions in the Sign Code that apply to any given sign depend entirely on the communicative content of the sign.'" However, that argument quickly falls apart when one remembers that only producers of sexually explicit material are required to keep 2257 records; all other producers, including those who produce simulated sexual material, can easily exempt themselves from 2257's recordkeeping requirements (not to mention the labeling requirements) by merely sending a letter to the Attorney General of the United States stating that they keep normal personnel and tax records on their actors—just as hardcore adult studios also do! "Justice Kennedy stated that regulations that apply to only one type of speech 'are content based, and we should call them so'," the response argues, referring to the high court's decision in Alameda Books v. City of Los Angeles. "But Renton’s use of intermediate scrutiny was nevertheless correct, he reasoned, because a regulation 'designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny.'" This argument similarly falls because by no stretch of the imagination is child pornography an expected "secondary effect" of the production of adult movies or Web content by reputable production companies. In fact, since 1984, when Traci Lords used a fraudulent driver's license to begin a career in hardcore movies—a scenario upon which 2257 as currently drafted would have no effect whatsoever—exactly five underage performers (the most famous of which was Alexandria Quinn) have managed to fool producers into allowing them to perform in adult content, and in each case, it was the industry itself which discovered those minors' frauds, expelled them from the adult community and recalled all product in which they appeared. But the government's best argument comes towards the end of its brief. "FSC appears to suggest that Reed overrules Renton and the other secondary effects cases, such as Alameda Books and City of Erie [v. Paps AM], by implication," the response states. "But the Supreme Court has squarely rejected such reasoning: 'If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.' This Court has 'steadfastly' adhered to the principle that controlling Supreme Court precedents must be followed until and unless they are expressly overruled, emphasizing that even if a recent Supreme Court decision has thrown earlier cases into doubt, 'the obligation to follow applicable Supreme Court precedent is in no way abrogated.'" That is certainly the biggest hurdle the plaintiffs will have to overcome—but it should be noted that legal history is full of situations where lower courts did reject Supreme Court precedent in order to protect the rights of citizens, and when those cases were finally argued before the high court, in several of those cases, the nine justices used those lower court decisions to change or overturn those prior precedential rulings. But considering that the Third Circuit has already taken the position that 2257 deserves only intermediate scrutiny, it could easily hang a rejection of the plaintiffs' petition on that "precedential" argument. Finally, after ignoring plaintiffs' argument that high court's decision in the abortion protest case McCullen v. Coakley stated that, "The government 'may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals'," (as 2257 clearly does), the DOJ response devotes just one paragraph to plaintiffs' argument that City of Los Angeles v. Patel, where law enforcement's ability to seize hotel registers without a warrant was ruled illegal, provides grounds for 2257 to be ruled unconstitutional. The DOJ here states simply that, "The Department of Justice is preparing to revise the regulations to comply both with this Court’s ruling and with Patel. As a result, Patel provides no occasion for further consideration by this Court of the administrative search issue." Murray and Baumgardner will have 15 days to respond to the government's response to their petition if they choose to do so, but when the Third Circuit will issue its ruling is anyone's guess. The Justice Department's Response to Petition For Panel Rehearing can be found here.