On September 1, 2020 the Third Circuit Court of Appeals issued an opinion in the long-running litigation brought by the Free Speech Coalition, and others, challenging the constitutionality of 18 U.S.C. §§ 2257 of the Child Protection and Obscenity Enforcement Act of 1988 and 18 U.S.C. 2257A of the Adam Walsh Child Protection and Safety Act of 2006, along with the related federal regulations (collectively, “Section 2257”). The decision reverses the previous nationwide injunction against enforcement of the vast majority of Section 2257, which was issued by the district court on First and Fourth Amendment grounds. While the recent decision provides some glimmers of hope for the adult industry, Section 2257 has now been resurrected from the dead.
II. Historical Background
Section 2257 imposes criminal penalties on producers of sexually explicit materials who fail to comply with federal age verification, record-keeping, and labeling requirements. A person who fails to inspect IDs, create and maintain records, or properly label sexually explicit materials is subject to up to five years in prison for a first-time violation or ten years in prison per subsequent violation.
Since 2009, Section 2257 and the related regulations have been constitutionally challenged as a violation of free speech rights under the First Amendment by two adult entertainment trade associations and ten producers. As a result, the United States Court of Appeals for the Third Circuit has issued three prior opinions on the matter. Separately, the lower court previously issued the above-referenced nationwide injunction which prevented enforcement of Section 2257’s criminal provisions against any individual, based on the fact that Section 2257 was unconstitutional as applied to the ten producers in this line of cases.
In the first case, the Third Circuit determined that Section 2257 was content neutral and subject to intermediate scrutiny, but the court allowed the plaintiffs to move forward with an as-applied claim and overbreadth challenge.
In the second case, the Third Circuit determined that the two trade associations did not have standing to bring as-applied claims on behalf of their members, because they could not show the degree to which each member’s speech was unnecessarily burdened. The Third Circuit rejected the ten producers’ as-applied claims, because Section 2257 served the government interest in preventing producers from purposefully or inadvertently using underage performers, given that each producer used youthful-looking adults. The Third Circuit also upheld Section 2257 despite the plaintiffs’ overbreadth challenge.
In the third case, the court reviewed a then-recent Supreme Court decision, Reed v. Town of Gilbert, which the plaintiffs argued meant that Section 2257 was content-based and required the more onerous strict scrutiny review. A Third Circuit panel rehearing the case agreed with the plaintiffs and remanded the case back down to the District Court for further review.
The District Court held that (1) the trade associations lacked standing to bring as-applied claims on behalf of their members, (2) the age verification requirement was constitutional as applied to primary producers, but unconstitutional as applied to secondary producers, (3) the record-keeping and labeling requirements are unconstitutional as applied to both primary and secondary producers, (4) the criminal penalties are unconstitutional if used to enforce requirements that themselves are unconstitutional, (5) the plaintiffs failed to show that Section 2257 was substantially overbroad, and (6) the plaintiffs were entitled to an injunction prohibiting nationwide enforcement of the unconstitutional requirements by the Department of Justice. The District Court also formalized a ruling from the Third Circuit that found the warrantless inspection requirements of Section 2257 to violate the Fourth Amendment. At this point, Section 2257 was essentially dead other than requiring primary producers to verify age of performers.
III. The Latest Opinion
In reviewing the lower court’s recent decision, the Third Circuit released a fourth opinion which changed the legal landscape and enforceability of Section 2257 yet again.
First, the Third Circuit held that the two trade associations lacked standing to challenge Section 2257 on behalf of their members. The court explained that the claims require an individualized inquiry of each association member, since what may be narrowly drawn and the least restrictive means for one association member will not necessarily be so for another.
Second, the Third Circuit held that Section 2257 violates the First Amendment rights of ten specific producers. The Court explained that Section 2257 is not the least restrictive way to protect children from sexual exploitation, since it applies to producers that use models who no reasonable person could mistake for a child. In other words, Section 2257 is invalid insofar as it applied to producers that used models that are at least thirty years old.
Third, the Third Circuit held that the criminal penalties for noncompliance are unconstitutional as applied to the producers, because the underlying age verification, record-keeping, and labeling requirements are unconstitutional as applied to the producers. The plaintiffs had asked the court to declare the application of harsh criminal penalties for technical records-keeping violations unconstitutional. The court rejected this argument but found that the penalties could not be applied against these specific plaintiffs since the law itself was unconstitutional as applied to them. Same result – different reasoning.
Fourth, the Third Circuit held that Section 2257 was not facially invalid under the overbreadth doctrine. The court explained that Section 2257 can be validly applied in an extensive number of situations, since many sexually explicit productions involve youthful-looking performers. The court also noted that the statute would be impermissible if applied against (1) producers that use models that are clearly adults, or (2) consenting adults who share sexually explicit images between themselves for purely private purposes. However, these two invalid applications were outweighed by Section 2257’s vast legitimate sweep.
Finally, the Third Circuit held that a previously imposed nationwide injunction against enforcement of Section 2257 was broader than necessary to provide full relief to the ten specific producers. The court explained that the injunction improperly applied to enforcement against all individuals, even though Section 2257 had only been held unconstitutional as applied to ten specific producers. In other words, Section 2257 cannot be enforced against the ten producers in this case, but the law can be enforced against everyone else. However, the opinion suggests that Section 2257 may be unconstitutional when applied against (1) producers that use only models that are clearly adults, or (2) consenting adults who share sexually explicit images between themselves for purely private purposes. The court left open the possibility that the criminal provisions may also be unenforceable against all secondary producers but did not expressly decide this issue.
This recent ruling also recognized that the warrantless inspection requirements violated the Fourth Amendment. The Third Circuit had already ruled on that issue in an earlier decision, so the government was unable to challenge it again in this appeal.
In response to this ruling, the plaintiffs can ask the full panel of judges on the Third Circuit to rehear the case (“rehearing en banc”), can seek review by the U.S. Supreme Court, or can allow the case to be remanded (sent back) to the District Court for final judgment in accordance with the rulings. Time will tell which path the litigation will take.
IV. What Does This Mean?
Until this recent opinion, the adult industry could take comfort in the fact that a federal court had prohibited the government from enforcing Section 2257 against anyone other than primary producers who fail to verify the age of performers. That prohibition has now been lifted. While there may be constitutional problems with attempts to enforce Section 2257 in various circumstances, the Department of Justice can file criminal charges against non-compliant producers. A criminal prosecution can cause devastating consequences for any company or individual, regardless of the outcome.
Fortunately, the continuing prohibition on warrantless Section 2257 inspections means that producers who follow the law and do not use underage performers are unlikely to face an inspection. Presumably, the government would need to obtain a subpoena or warrant to inspect records. Nonetheless, all producers are encouraged to follow Section 2257 obligations to the letter.
The Free Speech Coalition, along with the other plaintiffs and their talented legal team, has worked tirelessly for many years to challenge Section 2257 on behalf of the adult industry. They deserve thanks and support for fighting this important constitutional battle.
Section 2257 – still crazy after all these years!
Lawrence Walters heads up Walters Law Group and has advocated for the interests of the adult entertainment industry for over 30 years. Nothing in this article is intended as legal advice. Mr. Walters can be reached at www.firstamendment.com or on social media @walterslawgroup.