Government's Appeal of 2257 Decision Back on Track After Shutdown

PHILADELPHIA, PA—After the U.S. Department of Justice appealed District Judge Michael M. Baylson's ruling in Free Speech Coalition's lawsuit against the federal record-keeping and labeling law, 18 U.S.C. §§2257 and 2257A ("2257") last October, it was supposed to deliver its opening brief in the case on January 4, 2019—but by then, President Narcissistic Personality Disorder had shut down the federal government, a "hiatus" that lasted 35 days and put a halt to most Justice Department functions, including brief writing for civil cases. But that shutdown is now behind us, at least until Someone's next tantrum, and the clerk of the Third Circuit Court of Appeals has set a new deadline by which the DOJ's brief in the case is due: March 27, though it may file sooner than that if the brief (and its index) are ready. Plaintiffs/appellees—Free Speech Coalition, the American Society of Media Photographers and the 10 other moving parties who remain in the case—will then have 45 days in which to respond, after which the government will have a shorter period of time in which to respond to that brief, if it wishes, and after all those briefs are received, together with any amicus briefs that may be filed, the court will set dates for argument of the appeal. At this point, plaintiffs have not filed a cross-appeal, in part because Judge Baylson's ruling gave the adult industry much of what it sought in the original lawsuit, as AVN noted in its pair of articles on August 6, 2018: "While the judgment... finds in favor of the government on the facial overbreadth challenge argued by plaintiffs Free Speech Coalition and the American Society of Media Photographers as well as 10 individual plaintiffs, as well as the 'as-applied' claims of the two organizational plaintiffs, Judge Baylson finds that both 2257 and its more mainstream counterpart 2257A are unconstitutional as applied to secondary producers, and that the law's arcane and detailed record-keeping requirements are similarly unconstitutional under the First Amendment as applied to all plaintiffs, and 'The Court hereby permanently enjoins Defendant, his agents, servants, employees, attorneys, and other persons acting in concert or participation with him from enforcing these statutes and regulations.' A nearly identical finding was entered regarding the labeling requirements for sexually explicit material. "Moreover, except in the case of primary producers—those who actually shoot the material and interact with the performers—the part of the law that mandates criminal penalties for failure to perform age and identity verification of performers is also struck down as unconstitutional. "The judgment reiterates that the court had previously found the warrantless search and records availability aspects of 2257 unconstitutional under the Fourth Amendment." While the government has only brought two prosecutions based solely on 2257 during the entire history of its existence, the DOJ has mainly used 2257 as a bargaining chip, usually against accused child pornographers, who do not keep identification records of their "performers," and for that reason are particularly vulnerable to prosecution under 2257, conviction on which could result in an addition five-year prison term on top of whatever sentence is handed down for the child porn itself. Hence, to avoid this added punishment, child porn producers are likely to be more willing to cut a deal with prosecutors to drop the 2257 counts. The government is, of course, loath to lose that tool in its legal arsenal, which result of Judge Baylson's ruling may have been a major impetus for filing the appeal in the first place—perhaps even more compelling than the government's dislike of losing anything to the adult entertainment industry. The plaintiffs/appellees case is being handled by long-time First Amendment advocates J. Michael Murray, who was recently nominated for Attorney of the Year to the legal blog Above the Law, and his associate Lorraine R. Baumgardner.