The district judge had held that the government was within its rights in demanding pornography producers to verify the age of performers and maintain identification records open to federal inspection. However, the U.S. Court of Appeals 3rd Circuit reversed the ruling and held that the federal regulations violated the First Amendment and Fourth Amendment rights of pornography producers.
The recordkeeping laws which were created to prevent child pornography and induction of minors in the pornographic industry carry criminal penalties for all publishers and producers in the chain who violate the regulations. Primary producers, secondary producers and website publishers, all come under the ambit of the regulations.
The lawsuit was brought by the Free Speech Coalition, a pornography trade organization. Fourteen other members of the adult entertainment industry also joined the suit as plaintiffs. They argued that the regulations were excessive, because, instead of being limited to the keeping of records of performers who had the chance to be minors, the regulations required the identification of ‘all’ performers. They argued that where the performers were mature adults who could not be mistaken for children, the requirements were excessive.
The trial judge granted the government’s request to dismiss the suit. However, the 3rd Circuit has disagreed and ruled that the plaintiffs should be given opportunity before the court to prove their point.
The three-judge panel of the Appeals Court held, “If one of the Plaintiffs employs performers that no reasonable person could conclude were minors, then that plaintiff may be able to demonstrate that the Statutes burden substantially more of that plaintiff’s speech than is necessary to protect children from sexual exploitation.”
Diane Duke, the executive director of the Free Speech Coalition said, “We understand that regulations need to be there. We just need regulations that are reasonable and that we can comply with.” She added that the prospect of facing five years in prison for misfiling a document was unreasonable.
The 3rd Circuit case is Free Speech Coalition et al v. Attorney General of the United States, No. 10-4085.