Free Speech Coalition v. Holder, 2013 WL 3761077 (E.D.Pa.)) July 2013

The same plaintiffs who brought you Ashcroft v. Free Speech Coalition are yet again in court.  This time attempting to get 18 U.S.C. § 2257 and §2257A as well as their corresponding regulations (imposing recordkeeping, labeling, and inspection requirements) struck down.  The vehicle for plaintiffs claim is under the First Amendment (as applied and facially); Fourth Amendment (as applied and facially); and the Fifth Amendment, as well as arguing that each statute and regulation is unconstitutionally vague, and thus void.

The procedural history is quite lengthy and began in 2009, where plaintiffs sought a declaratory judgment as well as injunctive relief.  The government moved to dismiss outright, and the court agreed.    On appeal, the third circuit affirmed in part and vacated and remanded in part.

Subject to the rehearing was:  1) for Plaintiffs’ as-applied claim under the First Amendment, whether the statutes are narrowly tailored; 2) for Plaintiff’s facial over-breadth claim under the First Amendment, whether the statutes unreasonably burden a substantial amount of protected speech; and 3) for Plaintiffs’ facial and as-applied claims under the Fourth Amendment, whether inspections amount to “searches” either because they intrude on areas in which there is a reasonable expectation of privacy or because they involve “common-law trespass” and if so, whether the inspections fall under the administrative search exception to the Fourth Amendment’s warrant requirement.

Plaintiffs presented testimony from twelve fact witness and three experts.  The chosen fact witnesses were artists, journalists, adult pornography producers, and educators.  To say there were specifically chosen is obvious, both in their testimony as well as the court’s findings of fact with respect to credibility.  The government called two FBI agents and four experts.  The FBI agents were formerly tasked with conducting the compliance inspections.  The experts discussed the role of youth in pornography, as well as the medical difficulty in assessing accurate ages based on sexual maturation.  In short, Plaintiffs wanted to show how art is being stymied, and how burdensome it is on the adult pornography industry to get §2257 compliance information on all of their actors and models.  The government on the other hand displayed the legitimacy in combating child pornography as well as the significance that is placed on teens and youths even in adult pornography.  Moreover the government explained how pubescent girls could appear to be over age with some makeup and lighting, ultimately leading to the argument that a universal requirement for age compliance data is necessary so as not to leave subjectivity open for debate.

After an exhaustive and impressive analysis on each issue, the district court held for the government on every issue except the as-applied fourth amendment claim for inspection at bona fide personal residences.

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This entry was posted in Defenses, Expert Testimony, Fifth Amendment, First Amendment, Fourth Amendment. Bookmark the permalink.

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