Argument in 2257 Case Gets Boost From NY Times Columnist

NEW YORK CITY—New York Times Supreme Court correspondent Adam Liptak has commented on some of the most pressing issues of our time and both predicted how the Supreme Court would rule on them as well as "Monday morning quarterbacking" the meaning of such recent issues as same-sex marriage, campaign contributions to judges, warrantless searches of hotel registries and many others. But Liptak's latest column, published today, deals with a case that has been much on the minds of those following the lawsuit filed by adult industry members and supporters against the federal record-keeping and labeling law, 18 U.S.C. §2257: Reed v. Town of Gilbert, which, as Liptak notes, "marks an important shift toward treating countless laws that regulate speech with exceptional skepticism." While reporting that Justice Elena Kagan's concurrence in the decision to strike down Gilbert's signage ordinance states that the law fails "the laugh test," Liptak goes into some depth analyzing Justice Clarence Thomas' majority opinion, reporting that, "The key move in Justice Thomas’s opinion was the vast expansion of what counts as content-based. The court used to say laws were content-based if they were adopted to suppress speech with which the government disagreed. "Justice Thomas took a different approach," Liptak continues. "Any law that singles out a topic for regulation, he said, discriminates based on content and is therefore presumptively unconstitutional." A topic like ... young-looking performers in sexually explicit movies and web content? It would seem so—and apparently, those "topics" may be incredibly far-ranging. For example, Liptak notes that although a federal appeals court last year upheld an anti-panhandling ordinance in Springfield, Illinois, just this month, in a rehearing of that same case, Seventh Circuit Chief Judge Frank H. Easterbrook, who delivered landmark opinions in the New Albany DVD zoning and Annex Books hours of operation cases, stated that, "The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-matter regulation. Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification." That should mean some major trouble for the government attorneys arguing in favor of keeping the 2257 law alive—and may be a clue as to why they changed tactics in their response to First Amendment attorneys J. Michael Murray and Lorraine R. Baumgardner's petition for a rehearing of the Third Circuit's affirmation of the trial judge's opinion in the case. In its response to the Murray/Baumgardner petition for rehearing, the government claimed that Reed case wasn't applicable to the 2257 lawsuit, but rather that the appeals court should uphold its own (and Judge Michael Baylson's) decision based on the "secondary effects" doctrine approved by the U.S. Supreme Court in City of Renton v. Playtime Theatres. One of the government's primary arguments at trial had been that the main reason the 2257 recordkeeping was important was because there's a lot of adult content out there that focuses on younger performers, often using the word "teen" in the title of the movie or web scene. Estimates of how much "teen"-labeled content is out there ranged from ten percent, as testified to by sociologist Dr. Daniel Linz, to one-third, according to anti-porn "expert" Dr. Gail Dines—but the important point here is that "teen porn" is a topic, as is "pornography" in general, and under Justice Thomas' dictum, federal regulation based on the topic of "teen porn" or "porn" should require strict scrutiny rather than the intermediate scrutiny previously approved by the Third Circuit for the 2257 case. Liptak reports on several other trial court and appellate decisions that use the Reed "strict scrutiny" standard, including one that struck down a South Carolina law barring political and commercial "robocalls," and a New Hampshire case involving a statute that made it illegal for a person to take a photo of his/her completed election ballot and show it to others and/or post the photo to social media like Twitter and Facebook. Both laws were deemed unconstitutional infringements on free speech under Reed. Liptak also quotes prominent First Amendment attorney Floyd Abrams—he defended the Brooklyn Museum of Art from Rudy Giuliani's attempted censorship and Al Franken from Fox News' lawsuit over the phrase "fair and balanced"—that the Reed ruling "provides significantly enhanced protection for free speech while requiring a second look at the constitutionality of aspects of federal and state securities laws, the federal Communications Act and many others." If the Third Circuit follows the lead of some of its fellow circuits' judges, one of those "many others" could easily be 18 U.S.C. §2257.