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PHILADELPHIA—It’s been just under a week since the Free Speech Coalition, on behalf of itself and 14 co-plaintiffs, filed its Motion to Reconsider under Federal Rule of Civil Procedure 59(e) Judge Michael Baylson’s dismissal of its complaint targeting the federal recordkeeping and labeling laws, 18 U.S.C. §§2257 and 2257A—and the motion focuses on the constitutional problems with the laws with laser-beam accuracy.

The motion, filed by FSC’s attorneys J. Michael Murray and Lorraine R. Baumgardner and prepared with substantial input from FSC Board member and constitutional scholar Reed Lee, is largely an expansion of the argument Lee set forth in an interview with AVN just after Judge Baylson’s Memorandum of Dismissal was filed in late July.

“Since the record keeping scheme, as implemented here, potentially criminal­izes the com­mun­i­cation of an over­whelming amount of otherwise lawful expression (which re­mains fully protected by the First Amend­ment) … it cannot with­stand even intermediate con­sti­tutional scrutiny,” the motion begins. “The bur­dens which it imposes upon speakers who produce or reproduce no child pornography at all and, even more importantly, on expression which is not, in fact, child pornography are very serious; and Congress may not substantially burden protected expression merely because it may resemble unprotected expression,” the motion continues, referencing Justice Anthony Kennedy’s opinion in FSC’s challenge to the Child Pornography Prevention Act (CPPA). [Citations removed here and below]

As readers will recall, intermediate scrutiny, as the name implies, assumes that the speech restriction in question is content-neutral—that is, it does not directly target the content of the speech being regulated (although in fact 2257 and 2257A clearly do)—and requires the government merely to prove that the statutes are narrowly tailored to further a significant governmental interest, do so in a way that does not directly target the content of the speech itself, and leave open ample alternative avenues of expression for the type of speech being regulated.

FSC’s 28-page motion first analyzes the “narrow tailoring” question, and focuses on “the precise governmental interest against which the challenge legisla­tion is to be measured.”

“This Court, for instance, has quite properly determined that the Government’s interest is in combating ‘the use of children in the production of pornography,’ thereby ‘fighting against the sexual exploitation of children’,” the motion states. “To be sure, legislation may directly implement narrower, derivative interests: suppressing child pornography serves the broader interest of protecting against exploitation the children who would be depicted, and banning even false advertising of child pornography serves the broader interest by promoting the ban on child pornography, and so on. Each of these narrower interests may properly serve as the gauge against which narrow tailoring is measured, but only if it is a legitimate derivative of the primary interest. A subsidiary interest may fail as a proper derivative if it too remotely related to the primary interest or, as here, if it runs afoul of a clear constitutional prohibition. … [T]he only interest to which the challenged statutes are narrowly tailored—requiring producers to prove that their expression is not child pornography—fails as a constitutionally legitimate, let alone significant, government interest. The Government’s primary interest remains, of course, but it is that interest—suppressing child pornography—against which the challenged statutes must be measured.”

Therefore, according to the motion, under the law, a separate analysis must be performed to determine what (if anything) differentiates the governmental interest in keeping minors out of adult content from its interest in forcing adult companies to keep comprehensive, specially-indexed records of its performers’ identities. It’s an analysis which no court has ever performed, and which the government has essentially maintained is no different than (or at least is subsumed by) its interest in preventing the creation of child pornography.

“In this case, the interest to which the statutes are narrowly tailored amounts to nothing more than a reversal of the First Amendment’s presumption that expression is constitutionally protected,” the motion charges. “Since a statute may not reverse a constitutional pre­sump­tion, the Plaintiffs respectfully submit that the only interest to which the challenged statutes are narrowly tailored is—perhaps very subtly—illegitimate. When properly measured against the Government’s compelling interest in supressing pornography depicting actual children, the challenged statutes are unconstitutionally over­inclusive, even by the looser intermediate scrutiny tailoring standard carefully detailed by the Supreme Court.”

In other words, 1) adult content made only with adults is constitutionally protected under any level of scrutiny; 2) such content is, if for no other reason than the already-existing child pornography laws, the entirety of the adult industry’s output—no minors are used in adult productions because even without the recordkeeping laws, producers would check performers’ IDs before they step in front of the camera, and have done so for as long as anyone in the industry remembers; so therefore, 3) no adult industry content violates 2257/2257A, and forcing companies to keep minutely-indexed records of that fact is unconstitutionally overburdensome.

The key is, the government has taken its legitimate concern that no kids appear in adult movies and placed the onus to prove that no kids are appearing in adult movies on the adult industry itself—yet as has been pointed out previously, government-issued photo IDs can be faked, and nothing in the law requires that an adult producer be able to distinguish between a real and a genuine-looking fake performer ID. Thus, if a producer made adult content with an underage performer with a good-looking fake ID, he/she could not be convicted under 2257 for having used the minor as long as he/she kept the performer’s ID properly indexed along with the IDs of all the other performers in the production—but, obviously, could be convicted of producing child pornography if the performer’s real age were to come to the attention of prosecutors.

As the motion progresses, the FSC attorneys lay out the steps which Congress has previously taken to try to solve what it continues to see as a “child porn problem” in the adult industry, and speculates what other steps might yet be enacted. For example, in the CPPA, it criminalized any adult content that appeared to contain underage performers—so-called “virtual child pornography.” That was struck down by the Supreme Court in Ashcroft v. Free Speech Coalition. The motion then speculates that Congress could try the burden-shifting mentioned above, but that would violate the concept that every person (or content) is assumed to be innocent (or protected by the First Amendment) until proven guilty (or unprotected) by admissible evidence. However, as the motion notes, Congress tried that scheme anyway in its original formulation of the 2257 law, but was rebuffed by Judge James Buckley in the 1989 case of American Library Assn. v. Thornburgh.

The motion goes on to imagine examples of other forms of protected speech that would similarly “lose” their protection if carefully maintained and indexed records were not kept.

“The mischief at which the Government properly aims is child pornography, and it may properly target all such expression,” the motion argues. “Yet here, Congress has targeted a much larger category of expression: what this Court, quoting Judge Buckley’s majority opinion in American Library Association v. Reno, has referred to as sexual ‘depictions of all performers who might conceivably have been minors at the time they were photographed or videotaped,’ i.e. any actual person. This class of what ‘might conceivably … be[]‘ child pornography is vastly larger than the category of child pornography itself. Conceivable child pornography is to actual child pornography what the group of all drivers is to the set of drunk drivers or, more aptly, the class of all reputation-damaging criticism (whether true or false) is to actionable defamation. Because the First Amendment does not permit Congress to require that speakers disprove ‘conceivabl[e]‘ nonprotection, the burdens imposed by the statutes challenged here must be narrowly tailored to the set of all actual child pornography rather than to this broadest possible superset of all ‘conceivable child pornography.’ Taking actual child pornography as the reference point, it is readily apparent here, as it was in FSC [v. Gonzales], that the challenged statutes apply to a ‘significant universe of speech which is neither obscene under Miller [v. State of California] nor child pornography under [State of New York v.] Ferber’,” the motion continues, quoting Justice Kennedy’s opinion in Ashcroft v. FSC.

“The Plaintiffs respectfully submit that, under these circumstances, Congress may not make it a separate crime to be unable to rebut that impermissible presumption. Yet this is precisely what the challenged statutes do,” the motion later continues. “The failure of a photographer or, perhaps, a video director to check each and every performer’s official identification document at the outset does not, of course, convert sexually explicit images created immediately thereafter into child pornography. The same is true of similar images with respect to which the required records were not properly created, maintained, or transferred or which do not bear the required disclosure statement. Yet the challenged statutes impose serious criminal penalties upon the dissemination, republishing, and circulation of all such images. … But unless these outlawed images are, in fact, child pornography—a matter entirely independent of whether identification documents were examined and the required records created and maintained—they remain constitutionally protected. … That is because the First Amendment fully protects expression until it crosses the line into a recognized unprotected category and because the burden is always on one claiming that such a line has, in fact, been crossed to prove it in a particular case. So it is here. There is no unprotected category of ‘conceivable child pornography,’ and the Supreme Court has made it unmistakably clear that even sexually explicit expression is entitled to the First Amendment’s presumption of protection. The challenged statutes would reverse that presumption by criminalizing expression simply because it is not provably protected. They cannot stand in their present form.”

But FSC’s attorneys have divined a way out of this dilemma for the government.

“The thrust of the challenged record keeping scheme—requiring those who disseminate any sexually explicit image to prove that it is constitutionally protected—dictates its unconstitutional features: principally, its application to those not directly responsible for the ini­tial creation of an image, its burdensome overdocumentation provisions, and its serious criminal­iza­tion of undocumented expression,” the motion summarizes. “But a simple, comprehensive age-check rule (i.e. one re­quir­ing the single person most responsible for creating a sexually explicit image to check identi­fication documents establishing the age of all performers—no matter how old or how well known to the image creator)—does not raise these problems directly; and it is therefore not uncon­sti­tu­tional per se.”

In other words, simply having the cameraperson who’s recording the performance take a look at each performer’s photo ID and note (perhaps on a checklist that could be kept in the producer’s files) that he/she has in fact seen the ID, should be all that’s needed to fulfill Congress’s concerns without the threat of even a non-record keeper going to prison for five years—and if that system were adopted, FSC argues that the adult industry would have no problem putting it into place.

“Thus if it were not motivated by an effort to reverse a critical First Amendment presumption, it would be easy for Congress to promulgate a comprehensive age-check requirement which avoids the unconstitutional results present here,” the motion argues. “Congress could plausibly conclude that a comprehensive age-check rule would serve the prophylactic purposes of helping to prevent inadvertent creation of child pornography (through ignorance or recklessness) and of making it more difficult for underage persons who wish to perform to deceive the creators of sexually explicit images. Congress could also conclude that a limited record production and preservation requirement—i.e. limited to the initial creator of each image and not otherwise burdening or tainting constitutionally protected expression—would serve the purposes of enforcing this prophylactic rule. This sort of comprehensive age-check requirement is preventative; it necessarily looks to the present or to the immediate future when a sexually explicit image is to be created.”

The motion notes that Congress has already put a similar scheme in place for checking to see whether U.S. businesses are hiring undocumented workers—and the penalty, if they do hire them and fail to keep a record of that fact is an administrative fine of between $100 and $1,000 with no prison time and no criminal record.

“The fact that Congress did not go nearly so far under the immigration laws demonstrates, by comparison, that its efforts in promulgating the statutes challenged here were directed not at prescribing a prophylactic rule but at burdening sexually explicit expression or all of those who deal in it,” the motion analyzes. In any event, the rules and procedures surroun­ding the [IRS's] I-9 forms, as actually enacted, would provide Congress with an appropriate guide when replacing the unconstitutional statutes challenged here.”

The motion goes on to note that despite Judge Baylson’s wholesale dismissal of FSC and performer Dave Cummings from participation in the First Amendment challenges to the statutes, allegedly because of their prior participation in FSC v. Gonzales, since the issues raised in the instant motion have never been previously ruled upon by any court, those parties would continue to have standing to litigate the instant motion.

In all, it’s a motion to be reckoned with, and so well argued that Judge Baylson, absent any bias he might have against sexual expression, should grant it—but no one, particularly the plaintiffs in this case, plans to hold his or her breath waiting for that to happen.

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