A few good articles: 2257 Case’s Post-Trial Reply Briefs

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The Free Speech Coalition, et al. v. Holder trial is winding slowly down and AVN’s Mark Kernes continues to offer the kind of reportage you will not find in the mainstream press.

In Post-Trial Reply Briefs Filed By Both Sides in 2257 Case, Part 1, Kernes affords us an inside look through the post-trial briefs–along with a thorough breakdown–of what’s fundamentally wrong with the 2257 & 2257A record-keeping laws.

What both sides did observe, though, is the judge’s order that the plaintiffs’ brief deal exclusively with the government’s Fourth Amendment arguments, and that the government’s deal with plaintiffs’ First Amendment claims—and right off the bat, the government gets it wrong.

“Plaintiffs’ post-trial brief makes clear that the heart of their concern with §§2257 and 2257A (’2257′) is not that checking photo IDs of individuals who appear in their work prevents them from creating sexually explicit depictions of adults,” the government brief begins—with a “straw man” argument, since that was not most plaintiffs’ claim, and since testimony revealed that all adult industry producers check models’ IDs as a matter of course. “Instead, plaintiffs simply regard the statutes as flawed as a matter of principle, by (in their view) forcing them to prove that their work is not child pornography. That view reflects a fundamental misunderstanding of this prophylactic regulatory law.”

Actually, the “fundamental misunderstanding” is all the government’s, since what it terms a “prophylactic regulatory law”—in other words, “Hey, fella, we’re just doin’ our job here; nothin’ more to see, so move along”—is in fact a complete reversal of the most basic concept of American jurisprudence: The defendant (in this case, any adult content producer) doesn’t need to prove him/herself innocent; the government needs to prove, beyond a reasonable doubt (since this is a criminal statute), that the defendant has committed the crime with which he/she has been charged. And in the case of minors in porn, the government has never found that an adult industry producer has knowingly put one in any of its productions—and the government only found out about the (almost literal) handful of minors sneaking into the industry, not by inspecting 2257 records, which it has done officially 29 times, but because the industry itself told them! [emphasis in the original]

And there is plenty of emphasis in the next paragraph, as well. Kernes incredulity spilling over more with every sentence.

Guilty until proven innocent. That is the problem with 18 U.S.C. § 2257 & 2257A. It treats citizens performing a legal job as if they are not citizens performing a legal job, but criminals probably breaking the law. It assumes the worst about a segment of American citizens and makes special exception to remove their rights by subjecting them to warrantless searches and seizures. Happy Independence Day, right?

Post-Trial Reply Briefs Filed By Both Sides of 2257 Case, Part 2:

In The plaintiffs’ reply brief, written by trial counsel J. Michael Murray and Lorraine Baumgardner, deals exclusively with the government’s objections to plaintiffs’ Fourth Amendment claims, as ordered by Judge Baylson, and the fact that the FBI’s 2257 inspections that took place in 2006-7 violated the Constitution’s prohibitions against unreasonable searches and seizures couldn’t be more clear.

“The evidence establishes that under the authority of 18 U.S.C. §2257 and its implementing regulations, government agents: (1) without a warrant or probable cause; (2) entered and occupied homes and private businesses, in many cases, for several hours; (3) examined and copied private records containing personal information; and (4) took photographs of the areas and files they searched,” the plaintiffs’ brief begins. “Agent Lawrence admitted that without the authorization afforded by 18 U.S.C. §2257, he would have needed a search warrant to accomplish what occurred during the inspections. Under well-established precedent establishing the restraints placed on the government’s power to search for evidence by the Fourth Amendment, the regime allowing these inspections is unconstitutional.”

There is much more and I highly recommend reading the articles in their entirety, as usual.

Mark leaves us with this:

Now, with all the post-trial briefing completed, plaintiffs must wait for Judge Baylson’s ruling in the case, which is expected to occur before the end of July—and when it does, AVN will be ready to analyze it and its effects on the adult industry.

Thank you, Mark!


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Author: Julie Meadows

Francophile, oenophile, French Scrabble advocate and future zombie apocalypse survivor.

6 Comments

  1. About the time 2257 had become law I had written my state representative and told them my opinion of it. The response I had received was a “thank you for your concern” letter and a hard copy of 2257. I almost wrote them back and complained about the number of trees they killed so that I could feel underwhelmed by their response.

    My concern was that it seemed to violate the privacy of the performer. My biggest concern because, at the time, many business and institutions (government offices) were reporting the theft of personnel information by identity thieves. How more or less secure is such information at a government facility in comparison to that of a 2257 custodian of records.

    I’ll admit that it wasn’t the perfect argument, it was what I had come up with as an explanation for my discomfort with that law.

    But, after reading this article, it seems I can find comfort that taxpayer money is being used so wisely. [sarcasm]

  2. Interesting on law in the federal criminal code in australia there are some absolute liability offences which means no defence if action proved also in some state criminal statue like possess stolen good there is a reverse onus on defendant. I consider all this from a. Legal perspectiveca bad thing. It should be for the state to prove. Interested to hear more

  3. Bad news on 2257

    PHILADELPHIA — from http://www.xbiz.com – The federal statutes that mandate performer record-keeping for adult entertainment producers are constitutional under the First Amendment, U.S. District Judge Baylson [pictured] ruled Thursday.

    Baylson also said that the statutes, 18 U.S.C. §§ 2257 and 2257A, are constitutional under the Fourth Amendment, except for in one regard – “the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record.”

    “The court has concluded the government largely succeeded in defending the constitutionality of the statutes,” Baylson said.

    Today’s ruling comes after an eight-day bench trial where 21 witnesses presented testimony and over 300 exhibits were entered into evidence.

    The Free Speech Coalition, along with 15 other plaintiffs, alleged in the long-running cased that they were subject to an unfair and unnecessary burden over the federal record-keeping laws.

    “Producers under Sections 2257 and 2257A are not a uniform group – they include primary producers of commercial films, secondary retailers, photographers, and even couples who upload sexually explicit videos of themselves onto tube sites,” Baylson said. “But the unity of the players in the industry was never the determinative factor in the administrative search cases.

    “Rather, it was the pervasiveness of laws aimed at ensuring the industry’s practices did not undermine the safety of the public, which justified the reduced privacy expectations of the businesses. And here, federal anti-child pornography laws are similarly extensive.”

    Baylson used the three-factor Burger test when he looked at whether warrantless inspections under 18 U.S.C. §§ 2257 and 2257A were “reasonable.”

    “The first Burger factor asks whether there is a ‘substantial’ government interest that informs the regulatory scheme. The third factor asks whether the application of the inspection program provides ‘a constitutionally adequate substitute for a warrant,’ because the statute or regulations inform businesses that ‘inspections will be made on a regular basis’ and limit the inspections in time, place and scope.

    “These two factors are satisfied with respect to the inspections authorized by the statutes. The governmental interest informing the regulatory scheme – combatting child pornography – is substantial. Meanwhile, the statutes and regulations provide ‘a constitutionally adequate substitute for a warrant’ because they notify producers that inspections can occur on a regular basis

    “The record developed at trial reinforces that the inspections effectuated in 2006 and 2007 were far less intrusive than are searches effectuated pursuant to search warrants.

    “The second Burger factor, however, poses more problems for the inspections program authorized by the statutes. The second Burger factor asks whether the warrantless nature of the inspection program is ‘necessary to further [the] regulatory scheme.’ In Burger, the court found this factor satisfied because stolen cars and parts often pass quickly through an automobile junkyard, [and] ‘frequent’ and ‘unannounced’ inspections are necessary in order to detect them.”

    “[The] records mandated by the [2257] statutes are so extensive that they cannot realistically be manufactured on the eve of an impending search. Both FBI agents testified that it was highly unlikely that a producer could assemble Section 2257 records within 24-hours’ notice of an inspection.

    “Further, in about nine of the 29 inspections conducted in 2006 and 2007, advance notice was given, to ensure the producer or custodian of records was on site when the FBI team arrived, and there is no evidence that it undermined the integrity of those inspections.”

    Three issues were before the court: Whether 2257 and 2257A and their implementing regulations were narrowly tailored under the First Amendment’s intermediate scrutiny test as applied to plaintiffs; whether the 2257 requirements were substantially overbroad under the First Amendment; and whether plaintiffs were entitled to injunctive relief under the Fourth Amendment.

    Baylson, however, gave the FSC only one victory in the case: Inspections at bona fide residences of producers violates the Fourth Amendment.

    “Under the factual record developed at trial, the equitable remedy of an injunction is not warranted at this time,” Baylson said. “The evidence shows the government has not conducted a Section 2257 inspection since 2007. Rather, the FBI dismantled the inspections program in early 2008, and there has been no intent or effort to revive it. It is moribund.

    “As a result, plaintiffs do not face a realistic threat of ‘irreparable harm’ – due to an inspection – at any point in the foreseeable future,” he said. “A judge must take a deep breath before enjoining the nation’s top law enforcement officer from doing something that the Department of Justice has shown no interest in doing for the last six years.

    “Under these circumstances, the court believes it would be an abuse of discretion to enter an injunction against the attorney general.”

  4. So, essentially, Judge Baylson accepted full tilt Gail Dines’ assertions that because porn shoots favor “teens” and that 18 – 21 year olds MIGHT be mistaken for underage girls, it is perfectly acceptable for government to harass, abuse, stigmatize, and destroy legal businesses….and require even 30 to 50 year old performers to prove they are not pedophiles or underage by revealing their true identities to stalkers and scam artists. Now, if you just produce for private without profit, we have to prove “probable cause before we can invade your home. Otherwise, you are assmed guilty…just like Trayvon Martin, and subject to the corporate death penalty and risk of jail time.

    This judge would have loved the condom mandate, too, I guess.

    Once again, child porn is used as a wedge to regulate legal adult entertainment out of existence.

  5. And this bit of illogic: “The government hasn’t done a 2257 inspection in 6 years, so what’s there to worry about??” Right…I mean, the anti-sodomy law in Virginia is still on the books, yet it hasn’t been enforced in years, either, so why should adults legally worry about it being used in the future by some rogue state Attorney General who wants desperately to become the next Governor??

    Sex and sexuality is still a vector of oppression; and sexual entertainment seen as a plague to be destroyed. The sooner we acknowledge that, the better we all will be.

  6. I must be missing something because I assumed a 2257 documentation was nothing more than information found on a state-issued ID card, and that the document itself could be a photocopy of someone’s ID. Apparently it must be more than that if its “highly unlikely that a producer could assemble Section 2257 records within 24-hours’ notice of inspection”. Have these people not heard of the wondrous invention known as the personal computer, and just what exactly these machines can do with images.

    After all, a person couldn’t possibly make a photocopy of something in a home or small office. [sarcasm]

    Now I’ve been hearing that, at least until recently, it was legal to produce pornography in certain states of this country; California in particular. Assuming that’s true, then why does that statement of those two FBI agents that believe obtaining such documentation is improbable in a 24-hour time period; why is that statement preceded by something about how quickly a stolen cars (and/or their parts) can pass through a junkyard. Yes because legal activities should be compared to with illegal ones when making legal decisions.

    This is based off what Richard had posted in an earlier comment.

    I find it difficult to mention that part of Richard’s comment without addressing Anthony’s mention of the Martin/Zimmerman incident. I find it equally frustrating, if not more-so, because you are essentially using a criminal act/trial as a comparison to porn, by saying that the government is assuming that producers of porn are guilty of what they are being accused of. I assume that stereotypes would dictate that the anti-porn people would also be among those that Zimmerman was justified in shooting Martin; that he happened not to be some innocent kid.

    So, do you think that saying the porn industry shouldn’t be automatically assumed guilty, just like Trayvon Martin, is a wise idea? We’re talking about a country where profiling and assumption of guilt has been the norm since (practically) its inception. I could go on a rant about that but that would be way off topic, so, I’ll change gears to say that in order to defeat the anti-porn movement you should know your enemy.

    Based on conversations I’ve had with people, not all of which are of the conservative mindset, I would say that 90% of the people that are against the production of pornography have some, if not all, of the following statements true about them:
    * They have a christian upbringing that has taught them that sex, outside of marriage and for the purposes of creating a child, a sin.
    * They have not seen pornography themselves, or, the pornography they’ve seen is not typical of the industry.
    * They are under the assumption that all porn is produced by the same people (i.e. the “mainstream” companies in the industry also produce child porn)
    * All they have to go on about the industry is what the anti-porn movement (particularly Gail Dines and Shelley Lubben) have had to say about the porn industry.
    * They have been taught that all, if not most, of the performers in porn have been brainwashed, or have been made complicit via drug use, and say under duress that they perform in porn willingly.
    * They have been taught that all producers of porn are criminals willing to treat people as property to be abused in order to make a profit.

    That said, I’m not surprised by what I have read. I’m also not under the belief that our “freedom” is entirely what we would like it to be because people are willing to give up that alleged freedom for security. Unfortunately one thing that people feel they need to be made safe from is pornography. Now it really doesn’t help when the industry (not just some fringe elements) create content that can just be used as ammunition for the people that would want porn to go away. I think even the same can be said for some performers and what they say on social media; it doesn’t help how people see porn.

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