Is 2257 Near Death for Adult Industry Producers?

PHILADELPHIA—As the long battle to invalidate the federal recordkeeping and labeling laws, 18 U.S.C. §§2257 and 2257A, continues, it's beginning to look as though First Amendment attorney J. Michael Murray, who represents the 12 remaining plaintiffs (including Free Speech Coalition) who filed the lawsuit, may be on the verge of a major win. When we last left the 2257 battle, U.S. District Judge Michael M. Baylson had held a hearing on the issues raised by the Third Circuit's reconsideration of the plaintiffs' appeal, which itself was based on two recent Supreme Court decisions. A report on that hearing can be found here. Of importance here is that the Third Circuit ordered Judge Baylson to re-analyze the evidence from the 2013 trial of the case under the standard of "strict scrutiny," whereas before the Third Circuit's most recent consideration, the trial court had been operating under the lower standard of "intermediate scrutiny." After the conclusion of the hearing before Judge Baylson on September 28, 2017, the judge asked Murray to speak with his clients—most notably the industry trade organization Free Speech Coalition—and ask them to come up with a "standard practice" that commercial adult producers could agree to regarding checking the IDs of performers before they would appear in explicit content, and for retention of such ID documents. Murray did so, and that document, which was prepared by Free Speech Coalition with input from a variety of industry leaders and professional sources, was submitted to the judge in late October. That document can be read here. At that same time, Judge Baylson agreed to the request from Deputy U.S. Attorney Kathryn Wyer that she be allowed to consult with her superiors regarding whether they wanted to put on more evidence as to whether the 2257 laws meet the standards for "strict scrutiny." But although the judge gave Wyer four weeks from the date of the hearing to get back to him with an answer, at the government's request, he extended that reply date to January 5 of this year—and at the same time denied its request that the plaintiffs answer additional written "interrogatories"—questions that the government would have submitted to various of the plaintiffs seeking more information about their practices and legal theories. Now, with all of the requested paperwork having been filed with the court, it will be up to Judge Baylson to rule whether to affirm the legality of the 2257 laws, to strike them down—or some combination of the two, much as, during the September hearing, he had struck down the portion of the law that allowed for warrantless records searches of adult businesses. There is no deadline by which the judge must issue his ruling. But if one thing is clear from the filings the government made on January 5, there is very little argument to be made for the continued application of 2257 and 2257A to commercial adult producers. To understand why requires a bit of background. Under the "strict scrutiny" standard, the government is required to show that the two 2257 statutes are justified by a "compelling governmental interest" in the goal the laws are intended to accomplish—preventing minors from appearing in sexually explicit content—and that the laws as they currently exist are the "least restrictive means" to accomplish that goal. It must also show that the laws are "narrowly tailored" enough to accomplish the goal without being so broad as to draw in material that could not possibly relate to that goal. On that last point, the government has essentially thrown in the towel, at least as to content that uses only performers 30 years old or older. "[O]ut of all the alternatives proposed by Plaintiffs, the only one that deserves serious consideration by the Court is the suggestion that the Statutes and Regulations should apply only when a Plaintiff uses a performer under age 30," the government admits in its Memorandum in Support of its Proposed Judgment. "There is no question, and Defendant does not contest, that the Government’s interest in the Statutes’ age verification scheme is strongest when the requirements are applied to depictions of performers that could, going by appearance alone, be minors, and the record has already established that the appropriate cut-off age for this purpose is 30 years old." Translation: Since no one is going to mistake Cherie DeVille, Alexis Fawx, Nina Hartley nor the dozens of other "mature" actresses as being minors, there's no sense in keeping age-identifying documents on them. However, what the government is proposing is still far more restrictive than it might appear to be. For example, even if a feature is advertised as being MILF-oriented, experience has shown that such features often include younger-looking males and females—and their inclusion would require, under whatever is left of the 2257 law, that identification documents be kept for the entire cast anyway. And that "older than 30" standard is the only one the government is willing to give ground on. "Here, this Court should not put minors needlessly at risk by invalidating the Statutes in their entirety, when the Statutes can be validly applied to the production of millions of images depicting the sexual activity of young-looking individuals," the Memorandum goes on to say. "No broader relief, such as complete invalidation, is necessary or appropriate here. "In arguing that the Statutes fail strict scrutiny because there are less restrictive alternatives—including the alternative of simply doing away with age verification requirements altogether, or (along much the same lines) trusting producers to check ages of their own accord—Plaintiffs rely heavily on the notion that the Statutes target a 'non-existent' problem because, they maintain, the 'adult industry' does not want to produce child pornography," the Memorandum later continues. "The premise underlying this argument is that the world of the so-called adult industry, which produces sexually-explicit videos and photographs that are openly advertised and published on the Internet, is far removed from child pornography, which Plaintiffs suggest is found almost exclusively on peer to peer networks, or otherwise hidden in inaccessible corners of the Internet." To anyone familiar with the "so-called adult industry" (which of course is the actual adult industry that all of the plaintiffs are familiar with and most work in), the argument the government dismisses above is in fact self-evidently true. Commercial adult producers aren't stupid. They are well aware that child pornography laws exist, and that if they were to use an underage performer in one of their productions, whether that production is a DVD sold in stores or a web scene seen by millions of website subscribers, they would be putting themselves at risk for a federal prison sentence of at least five years, and possibly 10 or 20. Considering that plenty of young-looking adult performers are available for hire, and that it would be the height of stupidity for the producer to advertise that he/she had used an underage performer, there is simply no advantage to using one—even if the producer's own moral philosophy didn't prevent their use. "According to those who investigate and prosecute child pornography, the reality is otherwise," the government goes on to claim. "Millions of apparent child pornography images are found online by members of the public as well as electronic service providers and reported each year to the National Center for Missing and Exploited Children ('NCMEC'), which acts as the nation’s clearinghouse for information about the sexual exploitation of children." What the government leaves out, of course, is what Murray stated at that last hearing: After noting that there had been only nine prosecutions involving 2257 during the entire almost 30-year existence of the law, "none of them had been of a commercial producer." The rest of the government's argument for the preservation of 2257 is that there are a lot of young-looking performers out there, that a lot of porn—one-third, by the government's analysis—is advertised as featuring "teens," and that "There is no wall separating these two endeavors, or those who are involved in them. To the contrary, they coexist and intermingle on the Internet, and feed the same 'appetite for viewing' youthful-looking individuals engaged in sexual conduct that this Court previously recognized." Left out of that "analysis" is the fact that at that same hearing, "Murray responded [to the judge] by stating that none of the plaintiffs (including all members of FSC) would use an underage performer because they are 'totally against' doing so, and that FSC even offered a reward to anyone giving information leading to the conviction of anyone who did use an underage performer. He also noted that the penalties for violating 2257 don't hold a candle to the penalties for creating child pornography." Perhaps the government's best argument is that, as stated in the Memorandum, "The record also refutes the notion that there is any such thing as a monolithic 'adult industry'... The various self-policing regimes that Plaintiffs propose—including the options of eliminating the Statutes altogether, removing the criminal penalties (thus making compliance entirely voluntary), or purporting to rely on the new 'industry standards' that Plaintiff FSC composed only a few months ago—would leave the door wide open to circumvention by those who might claim to be part of an adult industry but instead use publicly-accessible platforms to sexually exploit children, allowing for even greater blurring of the lines between child pornography and the market demand for youthful-looking adult pornography." Just one problem there: As AVN reported after the September hearing, "As the hearing drew to a close, Judge Baylson asked if the parties could agree that the operative definition for a 'commercial producer' of adult content would be one who sells or trades the material, and both sides agreed with that. The judge then suggested that he might rule that 2257 did not apply to 'commercial producers,' which he believed would solve a lot of problems." Such a ruling would, of course, be an enormous boon to the "commercial" adult industry, while the law would continue to exist for those who "use publicly-accessible platforms to sexually exploit children." The government further argues that 2257 came into existence to "close a loophole" in the child pornography laws, but as AVN pointed out as early as 2005, 2257 does nothing of the sort. "Criminal child pornography charges are less likely to be brought when it is difficult to determine that a sexually-explicit image depicts a child rather than an adult," the government claims—but as the 2005 article points out, 2257 does nothing to help such prosecutions. All it requires is that the producer look at the performer's ID and keep a copy of it—but in the case of all of the underage performers who have snuck into adult industry productions, the IDs they presented were either excellent counterfeits, or actual government IDs borrowed from some adult who looked enough like the minor that the minor could use the ID to pass for an adult! Moreover, 2257 doesn't—in fact, can't—require that the producer be expert enough in forensics to be able to tell a good-looking counterfeit ID from a real one; the law only requires that the producer keep a copy of the "ID." Such an ID would be useless in helping identify an alleged child in an adult production, nor would an ID borrowed from an adult. Perhaps recognizing the uselessness of attempting to use 2257 records to identify minors, the Memorandum falls back on the idea that the 2257 laws simply "deter and prevent the use of minors in the production of sexually explicit images." [Emphasis in original] They don't; child pornography laws do—but the Memorandum proceeds to discuss how such bogus ID documents would somehow help investigators identify minors in explicit productions. The entire second half of the Memorandum is devoted to the argument that the judge should invalidate the 2257 laws only as to performers over 30 years old, but as should be clear, 2257 is a useless tool in preventing commercial adult producers from using underage performers—whom they have every incentive not to use in the first place. The government's Memorandum in Support of its Proposed Judgment can be read here. What will happen from this point forward is, frankly, anyone's guess. Judge Baylson has given indications—most recently at the September hearing—that he is disposed to keep some part(s) of 2257 alive, and if he believes even part of the adult industry's arguments, he will rule that 2257 need only apply to non-commercial producers of explicit content. It also appears that the Memorandum and affidavits that the government produced in response to its own request to provide further evidence to bolster its case fall far short of being convincing, being mainly a retread of what it's argued before, save for the admission that it's stupid to apply 2257 to those over 30. But again, depending on how vested Judge Baylson is in retaining any part of the 2257 laws, a decision to strike the entire law, at least as it applies to the commercial adult industry, is far from a sure thing.