Trial Over Legality of 2257 Scheduled to Begin June 3

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PHILADELPHIA — from – The Free Speech Coalition’s long-running legal battle against the Justice Department over the legality of 18 U.S.C. § 2257 will be headed for trial on June 3 with a decision on the case due no later than July 30, XBIZ has learned.

U.S. District Judge Michael Baylson entered a scheduling order this week that creates a framework for the next two months leading up to the trial at federal court in Philadelphia.

Attorney Jeffrey Douglas, the FSC’s chairman, told XBIZ that the trial date is sooner than expected.

“It’s a mixed blessing,” he said. “The time press is on because there’s a lot to do in a short period of time with limited resources. The government, on the other hand, has an infinite amount of resources for depositions and other work.”

Baylson ordered that all discovery must be completed by April 30 — including depositions by the FSC’s 13 co-plaintiffs and five other witnesses, as well as the government’s deposition of two FBI agents.

The Justice Department, as part of the discovery proceedings, will produce copies of 29 inspections pursuant to 2257 that occurred between July 24, 2006, and Sept. 19, 2007.

In the scheduling order, Baylson noted that because the case is on remand from the 3rd U.S. Circuit Court of Appeals for determination of certain facts, he’s more inclined for a trial rather than deciding summary judgment.

The FSC, which filed suit against the government more than three years ago along with the 13 co-plaintiffs, asserts that the federal record-keeping law for porn producers is unconstitutional because it violates constitutional protections against unreasonable search and seizures under the 4th Amendment.

Sections 2257 and 2257A impose a record-keeping requirement on producers of sexually explicit materials and require that they make such records available to the government for inspection at all reasonable times.

While the inspections haven’t been employed by the government for some time, the law continues to be in the books and federal inspectors may at any time launch inspections of the records and prosecute any infraction.

The regulations spell out requirements for the maintenance, categorization, location and inspection of records, as well as legal grounds for exemption of these requirements. They require that records be maintained for five years after the dissolution of a business that had been required to maintain them.

In 2008, the Justice Department modified 2257 to provide visual depictions of simulated sexually explicit conduct fall within the scope of materials for which the record-keeping requirement is triggered; actual lascivious exhibitions of the genitals or pubic area are also within the scope of materials triggering the requirement; and producers may use third-party custodians to store their records.

But Baylson, in a November memorandum, said that the 2008 changes will not cause every inspection in the future to be materially different from those in the past.

“The broader scope of images for which the recordkeeping requirement is triggered will not lessen the invasiveness of future searches,” he said in his ruling that keeps alive FSC’s 4th Amendment privacy claims over 2257.

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