Tuesday, April 17, 2012

3rd Circuit remands challenge of porn industry record-keeping requirements

In Free Speech Coal. v. Attorney General of the United States, 2012 U.S. App. LEXIS 7543 (3rd Cir. 2012), the Third Circuit remanded a case challenging the constitutionality of 18 U.S.C. § 2257 and § 2257A, a record-keeping requirement for the pornography industry, after the court granted the government's motion to dismiss. On remand, the district court must consider the plaintiff's First and Fourth Amendment arguments.

The statute requires the producer to keep identifiable records of each performer and to have the records available for inspection by the attorney general "at all reasonable times."

With regard to the First Amendment claim, the Third Circuit found that the statute is content neutral (not an attempt to regulate content, but to protect against child pornography) and is subject to intermediate scrutiny. The court found that the standard was met, but it remanded to allow the plaintiffs "to conduct discovery and develop the record regarding whether the Statutes are narrowly tailored." They also concluded that the government's limiting instructions were likely insufficient.

The Fourth Amendment claim suggested that the statute and related regulations "unreasonably authorize the government to conduct warrantless searches and seizures. The court found that further development on the record is necessary to determine whether a violation of Jones or Katz has occurred and if the administrative search exception is applicable.

A concurring opinion by Judge Rendell concluded that more facts are necessary to determine the application of Jones, but that the administrative search exception cannot be justified.

Tellingly, neither the government nor the District Court has explained why the government's goal of ensuring compliance and deterring the fabrication of records would not be served by warrants issued on short notice as part of a regular, administrative enforcement scheme.

0 comments:

Post a Comment