XBIZ: 3rd Circuit Upholds 2257 Recordkeeping Law

May 14, 2015
Adult Business News
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The 3rd U.S. Circuit Court of Appeals has upheld the core of 18 U.S.C. § 2257 requiring producers of pornography to keep records of the ages and identities of people appearing in explicit photos or videos.

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A three-judge panel, asked to consider the constitutionality of the statutes’ recordkeeping, labeling, and inspection requirements for adult entertainment companies, today affirmed a lower court’s denial of plaintiff Free Speech Coalition’s First Amendment claims, except with regard to one aspect — the inspection of records involving those taking place during normal business hours and at such places as specified in the statute.

The appeals court also remanded the case back to the lower court to enter a judgment declaring that the warrantless searches during inspections violate the Fourth Amendment.

But the Philadelphia-based 3rd Circuit ruled that the statutes, 18 U.S.C. §§ 2257 and 2257A, are, for the most part, “narrowly tailored” and, therefore, constitutional.

“We will also affirm in part the district court’s judgment that the statutes and regulations do not violate the First Amendment,” Judge D. Brooks Smith wrote in the decision, joined by Judges Anthony Scirica and Marjorie Rendell. “In light of our conclusion that the government must obtain a warrant before conducting a search under the Statutes, however, we will remand to the district court to consider whether 28 C.F.R. § 75.5(c)(1)’s additional requirement that producers make their records available for at least 20 hours per week also violates the First Amendment.”

The nature of the state interest underlying the statutes — protecting children from sexual exploitation by the adult entertainment filmmakers — is compelling, the panel said.

“The financial benefits accruing to producers from using youthful models as well as the financial benefits those models themselves enjoy, together with the difficulty of differentiating youthful adults from minors, all combine to increase the risks of children being exploited,” the 3rdCircuit said in its ruling. “That the statutes represent an effort to stem the tide of child pornography only after direct prohibitions have been insufficiently effective supports the statutes’ facial validity.”

The 3rd Circuit panel said that there always is the possibility that someone making explicit works solely for private use or someone producing images of individuals clearly not underage could successfully challenge how the laws apply to them.

“The invalid applications of the statutes that plaintiffs have demonstrated still pale in comparison with the statutes’ legitimate applications, which counsels against holding the statutes facially invalid,” the court wrote in the 65-page opinion.

“We fully recognize that certain explicit, non-obscene materials have artistic, educational, or other social value. Our resolution of plaintiffs’ facial challenge is not a value judgment as to plaintiffs’ work. Indeed, the purely private nature of some of the expressive conduct to which the statutes apply requires additional sensitivity to the core First Amendment values implicated in this case.”

The FSC will be providing comments on the case to XBIZ shortly.


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