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3rd Cir. Upholds Porn Recordkeeping Requirements

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By Mark Wilson, Esq. on May 15, 2015 3:54 PM

In an attempt to make porn distributors police themselves, Congress passed into law 18 USC 2257, which requires that they keep records of all their performers so they can prove no one in their employ is underage. They also must produce these records at the government's request, or permit the government to inspect them at any time.

Porn companies think this requirement is onerous and violates the First and Fourth Amendments. The Third Circuit actually agreed, to some extent, at least as to the Fourth Amendment argument.

Infringing Anonymous Speech?

This is the second time this case has appeared in front of the Third Circuit. On remand, the district court upheld the constitutionality of the law except in as much as it purports to allow the government to conduct administrative searches of porn performer records kept in private homes.

Some of the plaintiffs here aren't just producing regular old pornography; they're also producing art. In particular, they claim that the record keeping statute makes it all but impossible for them to display "anonymous submissions of individuals' genitalia for the purpose of demonstrating that each person's sexual anatomy is normal" and a "documentary effort to photograph the adult, gay community on New York's Fire Island engaging in anonymous sex."

The record keeping requirement, they say, prevents their work from being truly anonymous, thus defeating the purpose of the work. (It might also impact sexually explicit, um, home-made recordings.)

Eh, It's Narrow Enough

Assessing the burdens on the plaintiffs to keep records of their performers, the Third Circuit said there was no evidence that this requirement was overly burdensome. While some plaintiffs testified that they have chosen not to upload certain images because of the record-keeping requirements, the Third Circuit reminded us that a few one-off burdens doesn't make a statute unconstitutional: "[T]he fact that some Plaintiffs are avoiding publishing certain images is not directly attributable to the Statutes and regulations themselves and is not equivalent to a governmental ban."

Many plaintiffs are complying with the statute, and the choice of a few not to so comply "amount to nothing more than personal decisions to avoid costs that they could otherwise bear." That doesn't make the statute facially unconstitutional.

The plaintiffs in this case also challenging the law as not narrowly tailored to achieve the compelling government interest, which is preventing child pornography. Some of their models, they claim, are well over the age by which they could be mistaken for being underage, and yet the law still requires them to maintain records on all models. Be that as it may, the Third Circuit, said, the argument isn't terribly availing, because the plaintiffs employ a "substantial" amount of models who do look like they could be underage, meaning the additional requirement of keeping records for clearly over-age models isn't especially burdensome.

No Administrative Searches, Though

Where the Third Circuit did agree with plaintiffs was that an administrative inspection scheme authorized by federal regulations was unconstitutional, in as much as it purported to allow government inspectors to enter any establishment, at any time, without a warrant, to look at those records. Administrative searches are permissible in industries with a history of close regulation, but the government never produced evidence that the pornography industry is part of a "closely regulated" industry.

In fact, the government itself admitted that a warrantless search is not necessary, as it would be extremely difficult to fabricate the requisite records within 24 hours. Pornographers won this battle, but lost the larger war: 18 USC 2257 is still a thing.

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