Porn Fought The Law … And Porn Won

2257 were four numbers that could have all but ended online pornography as we know it. After a twelve-year battle: Porn: One; the DOJ: Zero.

In theory, the 2257 regulations were allegedly drafted to ensure everyone appearing in pornography was over the age of 18. The adult industry agrees with that. The problem we had was the record-keeping regulations mandated by the law were not just over-burdensome, they were impossible to comply with. After a dozen years in court, the court decided we were right all along.

In a big victory for the Free Speech Coalition, the 3rd U.S. Circuit Court of Appeals today vacated and remanded a lower court’s July 2013 ruling that held that performer record-keeping for adult entertainment producers are constitutional under the First Amendment. ~xBiz

Jeffrey Douglas, Free Speech Coalition chair, called the judgment “one of the greatest adult industry victories in decades.”

“The federal government has lost,” Douglas told XBIZ. “Most of 2257 is now unenforceable due to its violation of the Fourth Amendment. Because of the strict scrutiny standard required by the 3rd Circuit, we are likely to prevail on our First Amendment claims as well when we return to the trial court. 2257 will then be truly dead.”

This is yet another victory for our industry. In February, Eric Paul Leue and the FSC led our successful challenge to the Cal/Osha condom regulations. The next stop in that battle is election day in California.

View today’s judgement here

xbiz2257
See the full article at xBiz.com

The Sword will update today’s ruling as more details become available.

Watch this blog.

1 thought on “Porn Fought The Law … And Porn Won”

  1. The conclusions of this article and the one linked to therein are a bit misleading. While the Third Circuit certainly found that the regulatory enforcement scheme employed by the government was facially unreasonable under the fourth amendment (a completely righteous conclusion), it by no means concluded that the law itself was a violation of the first amendment. Relying on precedent set by the Supreme Court in a relatively recent case (Reed v. Town of Gilbert) the Third Circuit merely concluded that the case was to be remanded to the Federal District Court for further consideration of whether the statutes in question are undergirded by a compelling state interest, and more importantly, whether the states chosen method of achieving those interests are in fact narrowly tailored to achieve those ends. Though it is the case that the application of the standard just articulated often proves fatal to content-based regulations of speech, this case is ripe to create an exception. I am curious to know what the plaintiffs – FSC – offer as an alternative to the record keeping requirement prescribed by the law. To me that seems to be the biggest obstacle for them to overcome. If the FSC is suggesting that its members should not be required to maintain records of performers ages then I do not care for their chances of prevailing in Court. The Supreme Court, the Third Circuit, and indeed every court agrees that there must be some way for the government to insure compliance with anti-child pornography statutes. To allow the industry to govern itself would be akin to allowing the fox to guard the hen house. While I do not doubt that the vast majority of purveyors do not want to employ underage performers, the government cannot presume that to be the case for every pornographer, thus necessitating the need for this sort of regulation. The Plaintiff has won a relatively small victory in this case, however, the war still looms. I agree with the dissenting judge from the Third Circuit, who rightly concluded that the majority applied the wrong standard, and I am almost willing to bet that this case might well be the one that invites the Supreme Court to resolve the question of which standard of scrutiny to apply to this case. If they rule as I presume they will, then I have the feeling that this law will be deemed constitutional at the final tally.

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