Government Seeks 3rd Circ. En Banc Rehearing of 2257 Decision

PHILADELPHIA—With apparently no more pressing matters to occupy their time, attorneys with the U.S. Department of Justice (DOJ) have petitioned the Third Circuit U.S. Court of Appeals to vacate the recent ruling by a three-judge Circuit panel to send the lawsuit regarding the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A (hereafter "2257"), back to Judge Michael M. Baylson for reconsideration, and to rehear the appeal of Baylson's original decision "en banc," meaning before the full slate of Circuit judges. The DOJ attorneys' main objection is to the Third Circuit's recharacterization of the First Amendment issues involved in the case as "strict scrutiny," a more restrictive standard than an earlier Third Circuit ruling which classified the issues as rising only to "intermediate scrutiny" status. "Strict scrutiny" requires that a challenged statute must "satisfy a compelling government interest"; must be "narrowly tailored" to achieve that interest; and must be the "least restrictive means" to achieve that interest. "Intermediate scrutiny," on the other hand, requires that the law simply "further an important government interest by means that are substantially related to that interest"—a much lower standard. Although the panel made it very clear that the decision that stemmed from the argument it heard on Dec. 9, 2015, was based largely on two recent Supreme Court decisions, Reed v. Town of Gilbert and Patel v. City of Los Angeles, the DOJ attorneys have nevertheless based their petition on two of the earliest cases involving 2257: the very first one, American Library Ass'n. v. Reno from the D.C. Circuit, and Connection Distribution Co. v. Holder, which J. Michael Murray, the primary attorney representing the plaintiffs in the current case, argued successfully before a Sixth Circuit panel in 2007, only to have that ruling overturned by an en banc panel of that Circuit about 18 months later. Also forming a major part of the DOJ's argument is the infamous case of City of Renton v. Playtime Theatres, Inc., which established the concept of "adverse secondary effects" stemming from the presense of adult material for sale in a community. In the current petition, the government attorneys have hitched their wagon to the dissent to the Third Circuit panel's decision announced last month filed by Judge Marjorie O. Rendell, who disagreed with her two fellow panelists, Judges D. Brooks Smith and Anthony Scirica, regarding the level of scrutiny under which 2257 should be examined. "Reed does not require strict scrutiny, as the dissenting panel member recognized," the DOJ attorneys argue in their petition. "The Supreme Court held in City of Renton v. Playtime Theatres ... that when legislation is directed at harmful, non-communicative 'secondary effects' associated with a particular category of speech, rather than the communicative effects of the speech itself, intermediate scrutiny correctly balances the individual and public interests under the First Amendment. The Supreme Court did not overrule Renton in Reed, and Renton and its progeny control here. Sections 2257 and 2257A are directed at a non-communicative secondary effect associated with the production of pornographic images—the sexual exploitation of minors. Congress has a compelling interest in combating child pornography, and a trial in this case confirmed that age verification for sexual performers furthers that interest without substantially reducing the amount or availability of speech. Strict scrutiny would improperly restrict Congress’s authority to address wholly non-communicative social harms, like the sexual exploitation of minors, while doing nothing to increase protected speech. Rehearing en banc is warranted." That, of course, is horseshit. Child pornography is hardly a "secondary effect" of adult pornography—that is, adult porn doesn't cause child porn—and the government's concern regarding the "sexual exploitation of minors" is well taken care of by the existing child pornography laws—laws that legitimate adult content producers are well aware of, and take every effort to avoid falling afoul of. Why? Because if an adult producer were to release sexually explicit material involving minors, he/she would find him/herself looking at a five-year minimum prison sentence, not to mention the expenditure of tens of thousands of dollars to recall the offending product. Moreover, adult producers have never objected to keeping government-issued photo IDs on each of their performers—as they have done for years, even before the passage of 2257 in the late 1980s. What they do object to, and what the plaintiffs' lawsuit is based upon, is the voluminous paperwork required by 2257 that requires producers to keep count of all the aliases the performer may ever have used, all the movies that performer has ever appeared in, all filed in a specific way by a "custodian of records" and kept in a separate file cabinet or on a separate server that, until the Third Circuit's most recent ruling, could be examined at a moment's notice and without warning by government inspectors. On top of that, every sexually explicit work must, under 2257, carry a label detailing its 2257 status, including every such photo posted on the internet, every webcam show (thus potentially compromising the physical address of the camgirl to any would-be stalker) and every box cover posted online (or in a print ad) by an adult retailer or distributor. It also encompasses ordinary people who take explicit photos of their own love-making, or who Skype or sext explicitly—most of whom have never even heard of 18 U.S.C. §2257. But despite the fact that the Third Circuit panel's majority in the recent ruling made it clear that Renton had never been applied beyond brick-and-mortar adult businesses, the DOJ attorneys base almost their entire argument on Renton, which admittedly formed part of the basis for the American Library Assn. and Connection Distribution opinions—both of which the government quoted in its petition—and which the government claims "directly controls" the current matter, rather than either Reed or the earlier Ward v. Rock Against Racism, both of which the panel quoted in its decision. "You have to understand, this is nothing more than a rehash of what they've already argued," noted Murray in an exclusive AVN interview, "and what was already rejected by the panel, or at least a majority of the panel. Their suggestion that there's some conflict between the panel decision and the decisions in the D.C. Circuit and the Sixth Circuit is simply not correct, because the decision by our panel was based upon the new Supreme Court case, Reed v. Town of Gilbert, which was not available and was obviously not considered by those other courts, so there's no conflict, because there's nothing to demonstrate that the Sixth Circuit or the D.C. Circuit wouldn't have done exactly the same thing if Reed had existed at that time. So this is simply a rehash of the arguments they've already made and which were rejected, but they have a right to ask for a hearing before the entire en banc court. I don't think the panel's going to rehear it but they have a right to ask that other active judges in the Third Circuit call for a vote, and then if they got a majority of the active jduges to vote in favor of it, rehearing it en banc would be granted. If no vote is asked for, or is sought but doesn't command a majority, then the petition would be denied." There are currently 12 active judges on the Third Circuit, including the Chief Judge, five of whom were nominated by President George W. Bush (including this panel's D. Brooks Smith), and the rest split between Presidents Clinton and Obama, so it's unclear which way the entire Circuit might vote—but they may decide not even to consider the issue. "Under the Federal Rules of Appellate Procedure, when a petition for rehearing or a petition for rehearing en banc is filed, the Rules indicate that no response is to be filed unless the Court directs that a response be filed," Murray noted, "so unless and until the Court directs us to file a response, we have neither the right nor will we file a response."