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ACLU and EFF File Amicus Briefs in Sexual Expression Appeal

By Gabriella Khorasanee, JD on May 09, 2014 | Last updated on March 21, 2019

The Electronic Frontier Foundation ("EFF") and the American Civil Liberties Union ("ACLU") of Pennsylvania have filed a joint amicus brief in a case that is on appeal to the Third Circuit Court of Appeals.

The two organizations lend their voices in a case challenging two federal criminal statutes that, according to them, violate First Amendment free speech rights and Fourteenth Amendment privacy rights. Soon to be before the Third Circuit for the second time in its long procedural history -- we wonder how the Third Circuit will decide.

Free Speech Coalition v. Holder -- Background

A group of adult pornography producers, artists, photographers and educators initiated an action seeking a declaratory judgment that 18 U.S.C §§ 2257 and 2257A were unconstitutional on a variety of grounds, and sought injunctive relief to prevent its enforcement. The federal laws, and attendant regulations, impose strict "recordkeeping, labeling, and inspection requirements on producers of sexually explicit media."

The district court granted the Government's motion to dismiss, and dismissed the complaint in its entirety. On appeal, the Third Circuit affirmed, except as to the First Amendment claims, Fourteenth Amendment claims, and whether to grant an injunction and remanded for the district court to explore those issues further.

District Court -- Second Time Around

Back in district court, the judge held an 8-day trial, with over 300 exhibits and 21 witnesses. The court found the laws constitutional under the First Amendment analysis both on its face, and as-applied. It also found the laws constitutional under the Fourteenth Amendment with the exception of "the allowance of inspections at the residences of producers, without prior notice, [which] cannot be justified on this record." Nevertheless, the court did not grant the injunction because "the prospect of future inspections [is] too remote to justify such relief."

Amicus Brief Filed

Now in the midst of briefing the appeal to the Third Circuit, the EFF and ACLU have submitted a joint amicus brief in support of the Free Speech Coalition, urging reversal of the district court's opinion. The Government's reply brief is not yet in, so we have some time before oral arguments, but you can bet this issue will gain more media traction as we get closer because, as the EFF notes, these laws "also potentially apply to a staggering number of Americans who create and share images of themselves over social networks, online dating services, personal erotic websites, and text messaging."

As revenge porn laws are also becoming more popular, we see this as one of the future hot button issues to watch.

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