Story of the Day Replay: Courts: Free Speech Coalition Can Sue U.S. Over Random 2257 Searches

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from – The government must face claims over its allegedly unwarranted inspections of pornographic businesses, placing them “in harm’s way day-in and day-out,” a federal judge ruled.

Free Speech Coalition (FSC) 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 the Eastern District of Pennsylvania 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 [pictured] denied the motion at a Nov. 26 hearing in Philadelphia, and explained why in an opinion last week.

“The direct impact of the statute on the regulated entities and their potential for prosecution if they choose not to comply establishes ripeness,” Baylson wrote. “Here, Section 2257 demands that plaintiffs create records and maintain them available for inspection, and the government has the right to enforce the statute as long as it is on the books. The claim is ripe.”

U.S. officials failed to show that the group lacked representational standing since proving the Fourth Amendment claim would require Free Speech members to testify.

“Even if a small number of FSC’s members were called to testify, this would be the type of ‘limited participation’ sanctioned by the Third Circuit,” Baylson wrote.

The government also failed to persuade Baylson that the plaintiffs do not face a “real, immediate and direct” threat of future inspections.

“The government’s argument regarding redressability is unavailing for two reasons. First, plaintiffs face a substantial possibility of injury – that is, being subjected to allegedly unconstitutional searches about which they complain – as a result of the plain operation of the statute,” the 16-page opinion states.

“As long as the statutes are in force, plaintiffs, all of whom are ‘producers,’ stand in danger of being subjected to intrusive and allegedly unconstitutional searches at virtually any hour of the work-day,” Baylson added.

“Moreover, the fact that no searches have been conducted since 2007 is not consequential because as long as Section 2257 is in force, the searches could be resumed at any moment.”

The cost of complying with the statute was a major focus of the ruling.

“Here, the statute authorizes the federal government to conduct warrantless searches of plaintiffs’ records during ‘regular working hours and at other reasonable times,’ thus placing them in harms [sic] way day-in and day-out, all year long,” Baylson wrote.

“This suffices to establish a likelihood of imminent injury.”

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