2257 Trial Begins June 3rd: Random Porn Searches Face Scrutiny

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from www.courthousenews.com – – A trial is needed to determine whether two federal laws related to inspecting pornographic businesses trample free-speech rights, a federal judge ruled.

The Free Speech Coalition is a nonprofit trade association for the adult entertainment industry. In a 2009 complaint, the organization took aim at two federal statutes that impose recordkeeping, labeling and inspection requirements on producers of sexually explicit materials. The group said these laws violate the First, Fourth and Fifth Amendments, and are unconstitutionally vague.

After a federal judge in Philadelphia dismissed the complaint in its entirety, the 3rd Circuit revived the First and Fourth Amendment claims.

In a June 2012 amended complaint, the coalition added claims that FBI agents entered and inspected the private business premises or homes of several Free Speech Coalition members and other producers, without a warrant or prior notice.

The government in turn challenged the Fourth Amendment claim for lack of subject-matter jurisdiction.

U.S. District Judge Michael Baylson denied the motion at a Nov. 26 hearing, and explained why in an opinion in December.

Both parties then moved for summary judgment on the First and Fourth Amendment claims. Baylson denied both motions last week, tossing aside the coalition’s claim that “only 2 percent of ‘pornographic materials in the commercial domain’ depicts persons that could be confused as minors, while the other 98 percent depicts persons who are clearly mature adults.”

“Defendant, on the other hand, submits evidence showing ‘[i]t is impossible to determine a person’s age based on visual observation alone,’ and that ‘the vast majority of women employed as performers by the pornography industry are either youthful or very youthful looking,’ Baylson wrote.

“Defendant contends these factual submissions help justify the prophylactic nature of Sections 2257 and 2257A because they show that the majority of pornographic depictions do, in fact, portray persons for whom age verification is warranted.”

This dispute of fact should be resolved at trial, according to the ruling which also highlights two unanswered questions – “(1) first, whether the total number of such youthful-looking adults is substantial – and thus, whether Congress was justified in imposing an across-the-board record-keeping requirement despite some burden; and (2) second, whether there is a considerable number of mature-looking individuals below age 18 who might be tempted to participate in commercial pornography and who would be readily hired by producers if there were no record-keeping requirement, and who are therefore also protected by the statute.”

The trial should also address whether the statutes chill the speech of certain artists, journalists, photographers and producers, the court found.

“These questions of fact – concerning the expectations of privacy in the areas searched, the character of the searches and whether they progressed in a cooperative and consensual manner, and the overall reasonableness of the FBI’s conduct – are best resolved through trial, where there is the possibility for in-court testimony, credibility assessments, and cross-examination,” Baylson wrote.

“Given that both parties rely so heavily on FBI reports, the court also believes it is essential that the FBI agents involved in the investigations be subjected to cross-examination and possible questioning by the court.”

The parties may raise the same issues at the trial scheduled to begin on June 3, the ruling states.

“Most importantly, this case touches upon important, controversial issues which are frequently debated in public,” Baylson wrote. “As the 3rd Circuit remanded for a factual inquiry, an open courtroom with live witnesses is the best forum to assure a full and fair exposure of the issues.”

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