Porn Industry Gets Second Shot at First Amendment Case

A group of porn-industry folks brought a recent lawsuit before the Third Circuit Court of Appeals in Philadelphia.

The lawsuit raised constitutional issues relating to criminal laws that imposed recordkeeping, labeling and inspection requirements on "producers of sexually explicit depictions."

The Third Circuit Court of Appeals overturned the district court's decision, dismissing the lawsuit. In a unanimous ruling by the three-judge panel, the district court ruling was partially invalidated and remanded.

The lawsuit raised First Amendment issues, specifically the constitutionality of 18 U.S.C. Sec. 2257 and 2257A.

The Statutes.

Section 2257, which was created under the Child Protection and Obscenity Enforcement Act, imposes three requirements on porn producers.

The first requirement mandates that producers must maintain "individually identifiable records" on each performer portrayed in actual sexually explicit conduct.

The second requirement imposes a labeling obligation on every copy of any visual depiction of the conduct. The label must indicate where the records from the first requirement are located.

The third requirement states that producers must maintain copies of the identification documents at their business premises for inspection by the Attorney General at all reasonable times.

Failure to abide by these requirements could subject the porn producer to criminal liability.

Section 2257A mandates these requirements on visual depictions of simulated, not actual, sexually explicit activity.

The appeals court held that the statutes were content neutral and that intermediate scrutiny applied. However, the court held that the plaintiffs should have been afforded the opportunity to conduct discovery in order to develop a record as to whether the statutes were narrowly tailored.

While the court held that the statutes did advance a substantial governmental interest in protecting children, the plaintiffs were not afforded enough opportunity to advance their argument on the narrow tailoring issue.

The case has been remanded and its dismissal by the district court has been vacated.

Related Resources:

• Free Speech Coalition v. Att'y General (FindLaw Cases)
• 18 USC 2257 (FindLaw Codes)
• Browse Third Circuit Court of Appeals Cases (FindLaw Cases)