Sunday, July 1, 2012

Recent Supreme Court Ruling

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The adult entertainment industry’s multi-decade war against the federal record keeping and labeling statutes, known to many as the 2257 regulations, recently received one of its biggest victories in years.

Specifically, a 3rd U.S. Circuit Court of Appeals tribunal reversed a lower court’s earlier decision to dismiss a case brought against the government by the Free Speech Coalition and other plaintiffs seeking to invalidate the 2257 regulations on constitutional grounds.

Because of the ruling, the case will now go back to the federal district court in which it was filed for further proceedings.

There is good reason for the adult entertainment industry to celebrate this great decision, and to congratulate FSC, its co-plaintiffs, and the plaintiff’s attorneys for a job well done indeed. While the 2257 regulations are still, unfortunately, quite alive and well, in light of the 3rd Circuit ruling, the ultimate constitutionally of the regulations is now more in doubt than perhaps at any time in the past.

But it is important to note that the 2257 regulations are in serious constitutional jeopardy in large part because of the 3rd Circuit’s ruling that they apply to purely private communications.

This interpretation supports the plaintiff’s contention that the statutory foundation of the 2257 regulations, 18 U.S.C. § 2257 and 18 U.S.C. § 2257A, are unconstitutionally overbroad because they apply to far more expression than necessary.

In its opinion the court recognized the plaintiff’s assertion “that the statutes are substantially overbroad because they burden the entire universe of constitutionally protected expression involving sexually oriented images of adults—including private, noncommercial depictions created and viewed by adults in their homes.”

The court then acknowledged the government’s counter-position stating that, “the statutes’ scope should be narrowly construed as applying only to depictions of actual or simulated sexually explicit conduct created for sale or trade, and thus, producers of purely private depictions would not be subject to the statutes.

In support of this position, the government cites the preamble to the regulations, which states that the government interprets the statutes as being “limited to pornography intended for sale or trade.” 73 Fed. Reg. at 77,456. The government also points to specific terms in § 2257 that it asserts speak primarily to the creation of images for industry distribution, such as “sexual performers,” “places of business,” and “normal business hours.”

But despite the government’s arguments, the court completely rejected the government’s interpretation that the 2257 statutes only apply to commercial depictions. In support of its ruling, the court stated:

“[T]he plain language of the statutes makes clear that they apply broadly to all producers of actual or simulated sexually explicit depictions regardless of whether those depictions were created for the purpose of sale or trade. See, e.g., 18 U.S.C. §§ 2257(a) and 2257A(a) (stating generally that “[w]hoever produces” any book or other matter containing “visual depictions” of actual or simulated “sexually explicit conduct” shall be subject to the statutes). It is axiomatic that regulations cannot supersede a federal statute. As a result, the plain text of the statutes setting forth their broad scope must trump any conflicting statements contained within the preamble to the regulations, including the assertion that the statutes are “limited to pornography intended for sale or trade.” 73 Fed. Reg. at 77,456.

Similarly, the regulations’ definition of “producer” also belies the government’s position. As discussed supra, the regulations define “producer” as a primary or secondary producer. 28 C.R.R. § 75.1(c). A primary producer is defined as any person who creates a visual depiction of a human being engaged in actual or simulated sexually explicit conduct. Id. at (c)(1). The definition of a primary producer is silent as to whether the depiction must be intended for commercial distribution. Id. A secondary producer, however, is defined as any person who, inter alia, publishes a magazine or other matter containing a visual depiction of a human being engaged in actual or simulated sexually explicit conduct, which is “intended for commercial distribution.” Id. at (c)(2) (emphasis added). Thus, because the definition of “secondary producer” limits its scope to those depictions created for commercial distribution but the definition of “primary producer” does not, the clear implication is that “primary producer” is not limited to those who create depictions for commercial distribution.”

The court then completely rejected the government’s interpretation that the 2257 statutes apply only to commercial content concluding that “the statutes are not susceptible to such a limiting construction.

 

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