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?
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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