New Decision on Constitutionality of Section 2257 Gives Hope to Makers of Home Sex Tapes

Published On April 19, 2012 | By Elizabeth Banker | General, Litigation
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The Third Circuit Court of Appeals issued an opinion on April 16, 2012, breathing new life into Free Speech Coalition’s challenge to Section 2257’s recordkeeping requirements on producers of adult content, ( Free Speech Coalition v. Attorney General of the United States).  Part of Title 18, Section 2257 is an anti-child pornography measure that requires that producers of adult content to maintain records of the names and ages of all participants or face criminal penalties.  Free Speech Coalition, and other plaintiffs, filed suit in the Third Circuit arguing that Section 2257 violates the First and Fourth Amendments to the Constitution.  In overturning the dismissal of both the as applied and facial challenges by the District Court, the Court of Appeals seemed most sympathetic to the possibility that the recordkeeping requirements, and the right of the government to inspect such records, may impermissibly impinge on the rights of citizens who are not engaged in the commercial pornography business, but may only produce adult content in the privacy of their homes for their own enjoyment.

The Court of Appeals remanded the case to the District Court to allow plaintiffs to develop the factual record to show how the record-keeping requirements may burden production of adult content where there is no risk of improper use of minors.  Particularly, in light of potential home production of adult content being covered by the statute, the court felt that the Fourth Amendment warrantless search issues should be re-examined at the same time, given that such private activities are unlikely to fall within the administrative search exception.

The government opposed the broad reading of Section 2257 pointing to implementing regulations that limit the scope of DOJ enforcement to production of adult content for business or trade purposes.  The Court of Appeals rejected this argument finding that regulations are insufficient to cure the potential over breadth of the statute.  The Court similarly rejected the government’s “constitutional avoidance” argument, finding that the clear language of the statute supported application to both non-commercial and commercial creation of adult content.

This is just the latest chapter in the long-standing litigation between the Free Speech Coalition and the Department of Justice over Section 2257 requirements.  There is clearly more to come.

About The Author

Elizabeth Banker has developed a practice that includes advising clients on interactions with foreign and domestic law enforcement, strategic issues related to data storage and transfers, providing advice on surveillance and employee monitoring laws inside and outside the U.S., as well as data protection, security and consumer protection issues.