Free Speech Coalition’s long-running battle with the federal government has ended, with several substantial victories for adult businesses and workers. The federal government failed to appeal the case to the Supreme Court by the March 26 deadline, and, as such, last year’s landmark ruling in the 3rd Circuit now stands as final.
As such, no adult business can ever be subject to a warrantless inspection under 2257. The Bush-era raids that once terrified adult businesses, and helped launch this legal challenge, have now been officially declared unconstitutional.
While 2257 and 2257A were not struck down in their entirety for all adult producers, the 3rd Circuit did rule that all provisions are unconstitutional for most of the plaintiffs who were originally party to the suit. This is a powerful precedent for producers in the 3rd Circuit, and it is likely to be very influential nationally. In the face of this ruling, it will be extremely difficult for the Government to prosecute 2257-related offenses as originally envisioned.
FSC first filed suit in 2009, after the FBI raided over 30 adult businesses looking for minor 2257 record-keeping violations — each of which was a felony. Those who were in the industry at that time will remember the fear and harassment legal adult businesses faced. Our case showed the federal government that we would not stand down in the face of harassment.
“This has been a long but critical battle in the rights of adult producers,” says Jeffrey Douglas, FSC Board Chair. “Had we not pursued this case, the government would have a dangerous tool for harassing and prosecuting adult producers and platforms. We are deeply grateful for the outstanding work by our lawyers, J. Michael Murray and Lorraine Baumgardner of Berkman, Gordon, Murray and Devan of Cleveland, Ohio.”
What This 2257 Ruling Means To You
The U.S. Third Circuit Court of Appeals gave FSC and the other plaintiffs a major and lasting victory in the 2257 case. Here are the most important facts about the ruling:
- The FBI can no longer demand access to your records by way of random inspections.You should continue to follow all record-keeping requirements under 2257 as currently written, but the records cannot be accessed without a warrant issued by a court upon probable cause.
- Sections 2257 and 2257A of the US Criminal Code (“2257”) have been declared unconstitutional under both the First Amendment and the Fourth Amendment. While this judgment does not apply to all producers, this victory at the second-highest court in the land is precedent-setting. This precedent should be very helpful to other producers if further litigation occurs.
- You are now less likely to be charged with a crime under 2257 or 2257A and even less likely to be successfully prosecuted.
What is the effect of this ruling on most adult businesses?
The overall risk of prosecution for any adult company is now significantly reduced, and the risk of a successful prosecution even more so. This precedent creates significant hurdles for a prosecutor who hopes to bring a 2257 charge against an adult business.
How did the court rule on First Amendment claims?
The 3rd Circuit limited its decision regarding First Amendment claims to the specific plaintiffs in the case, but dismissed the claim of “associational standing” — an argument made by the FSC which would have made the ruling binding as to all producers.
The court ruled that the complex 2257 record-keeping regulations violated the First Amendment rights of the original plaintiffs — save for FSC and American Society of Media Photographers (ASMP) — by seriously discouraging free speech. (The court ruled that FSC and ASMP, as trade associations but not producers, did not have standing.)
Anyone prosecuted under 2257 will now be able to point to this ruling as precedent, severely limiting the government’s ability to successfully prosecute an adult producer under 2257.
How is record-keeping a violation of free speech?
The 2257 record-keeping regulations are so complex that they create a chilling effect on protected speech — meaning they effectively discourage people from creating protected speech. If 2257 were fully enforced, everyone who sends an explicit picture of themselves on text, or retweets an explicit GIF, would have to maintain detailed records on everyone who appears in the image, as well as label the image — or face criminal penalties.
Such regulations would discourage people from talking about, creating, or engaging with sexually oriented content, and would have a silencing effect that courts have found unconstitutional. This was, perhaps, the original intent of the 2257 regulations.
Will this decision ever be applied to producers who were not the original plaintiffs?
If an adult company in the 3rd Circuit wishes to have this applied more broadly, there are avenues to bring new and broader challenges. Theoretically, such a new case could overturn 2257 regulations in their entirety. However, it’s an expensive proposition — and there remains the possibility that the Supreme Court could overturn the 3rd Circuit ruling.
Why did you not push to apply this to producers more broadly?
We did. FSC and ASMP were both original plaintiffs to the suit, and argued that any decision should apply to our members. In the latest decision, the 3rd Circuit found that we did not have standing to bring the suit — meaning our members would not automatically be protected by the final judgment in the case.
Originally, we had approached many adult companies to become a party to the suit in hopes of broadening it, but most did not want to draw attention to themselves, or be seen fighting a law that, on its face, was meant to fight child pornography.
How did the court rule on Fourth Amendment claims?
The court ruled that no adult producer can be subject to random administrative inspections of their records — something previously permitted under 2257. Any record inspection now requires a warrant (and, thus, probable cause). This applies to all producers nationwide, not just to the ten plaintiffs.
What does this change for the adult industry?
We can no longer be harassed without probable cause, and it’s unlikely that a record-keeping violation will land you in prison.
From 2005 to 2006, FBI agents raided over thirty adult businesses in an effort to find record-keeping violations. The raids were part of a long-running effort to use minor record-keeping violations to harass and prosecute otherwise legal adult businesses. (The warrantless inspections were ultimately stopped due to a ruling obtained by our lawyers in a different case.) Under 2257, even a minor mis-alphabetizing of a record could result in a felony.
The government is permanently prohibited from conducting this type of inspection, and will now require a warrant.
If this is a victory, do I need to continue maintaining 2257 records?
Yes. For now, the only people specifically exempted from 2257 are the individual plaintiffs in the case.
So we’re still forced to keep the records, but they can’t inspect them?
They can still inspect records if a court signs a warrant based on probable cause that you have not followed 2257 or committed another crime (e.g., they have specific reason to believe that you are filming people who are underage), but they may not show up at your offices without a warrant and demand you hand over any records they request.
What if I only shoot GILF porn? All of my models are well over 30!
The risk of prosecution is miniscule, but unless you were one of the ten plaintiffs in this case, you still need to keep records.
What are the possible consequences if they do get a warrant to search my records? On a practical level, why do I need to keep maintaining the records?
While the risk is low, if you don’t have records, or have inadequate records, and the government gets a search warrant you can still be prosecuted. You might assert First Amendment and perhaps other defenses, but violations of 2257 are felonies, so any prosecution poses risk, to say nothing of the defense costs and anxiety involved. You should always keep records to avoid the possibility of an inadvertent child pornography prosecution. And as long as it remains the law, 2257 documentation increases the value of your library — anyone who might partner with you or purchase your library will need these records.
Do I still have to get the 2257 records from the primary producer if I am a secondary producer?
This depends upon your tolerance for risk. In its decision, the court said it assumed that secondary producer requirements were unconstitutional, but as no one who was exclusively a secondary producer was party to the case, they did not rule definitively. This is something to discuss with your lawyer.
Why is FSC fighting regulations that require age-verification?
We’re not opposed to age-verification. Age-verification should always be conducted and documented. Filming someone under the age of 18 is immoral, illegal, and punishable by a minimum of 15 years in prison.
The 2257 regulations were not designed to detect or deter child pornography, and they do not do so. They were designed to make legal adult producers easier to prosecute.
FSC recommends record-keeping for all adult productions, but opposes the overly complicated 2257 regulations, which allowed the FBI to demand adult records at any time, and created a host of criminal penalties for adult producers for even minor record-keeping mistakes. You can read more about our commitment to fight child pornography and our opposition to 2257 here.
How long have we been fighting this?
The law itself has been on the books since 1988 when conservative anti-porn activists in the Reagan administration drafted the 2257 regulations to create additional burdens for adult producers.
The FSC has been relentlessly leading the battle against 2257 since 2004, when the Bush Administration began using the law to harass adult businesses, and requiring not just producers, but “secondary producers” — such as tube sites, review sites, and social media — to maintain records for every image on their site.
In 2009, FSC sued the US government to overturn the regulations, arguing that they violated free speech protections and that the FBI searches violated the Fourth Amendment. Over the course of a decade, we’ve won significant victories in that regard, and so we should all thank FSC’s legal team, J. Michael Murray and Lorraine Baumgardner, who have, in the course of this protracted litigation, very substantially disarmed Sections 2257, 2257A and the associated regulations.