PHILADELPHIA — The 3rd U.S. Circuit Court of Appeals sided with the Free Speech Coalition on several key points in its appeal over the dismissal of it lawsuit against the Justice Department over 18 U.S.C. § 2257, the federal recordkeeping and labeling law.
The court on Monday ruled that it would vacate a lower court ruling that the FSC shouldn’t be afforded the opportunity to conduct discovery and develop a record relative to whether 2257 is narrowly tailored.
The court also said it would toss an earlier order dismissing claims for a restraining order over 2257 due to alleged 1st and 4th Amendment challenges over free speech and unreasonable searches and seizures.
It also said it would vacate an earlier decision to deny the FSC’s leave to amend its 4th Amendment complaint.
But the court affirmed the district court’s order in all other respects and remand the case for further proceedings “consistent with the foregoing opinion.”
“We’re very excited about this magnificent win at the 3rd Circuit,” FSC attorney J. Michael Murray told XBIZ. “We’re happy that they agreed that our arguments on the government’s constitutional attacks on the 1st and 4th Amendments were worthy.
“It’s a great day for freedom of speech,” he said.
U.S. Appeals Court Judge Marjorie Rendell, who concurred with the three-judge panel, wrote that as “a matter of law the administrative -search exception to the 4th Amendment’s warrant requirement does not justify the warrantless inspections authorized under sections 2257 and 2257A.”
“[T]he district court acted prematurely when it dismissed plaintiffs’ First and Fourth Amendment claims at the pleading stage…,” she wrote.
The Free Speech Coalition and 14 co-plaintiffs in February 2011 filed an appeal with the 3rd Circuit Court challenging 18 U.S.C. §§ 2257 and 2257A.
Besides the FSC, the plaintiffs attached to the suit include the American Society of Media Photographers, which represents 7,000 members; Barbara Nitke, a teacher at the School of Visual Arts in New York and a commercial photographer; David Steinberg, a photographer and writer of sexual issues; Nina Hartley, a performer and website owner; and Michael Barone, a photographer.
The plaintiffs list also includes Dave Cummings, an adult industry performer who owns numerous websites; Tom Hymes, an adult industry journalist who runs a website; Sinclair Institute, which operates sexual health clinics; gay porn studio Channel 1 Releasing; Barbara Alper, a photographer; Carol Queen, a sexologist and feminist sex educator; Dave Levingston, a photographer; and Betty Dodson and Carlin Ross, who co-host a website.
One Response
Even bigger win for the compliant free pirates who steal all of the content the honest people have to keep 2257 records for.
Funny how that works.