Category Archives: fourth amendment

Does 18 U.S.C. 2257 Violate the Fourth Amendment?

The Free Speech Coalition has obtained a landmark ruling applying limited fourth amendment protections to prevent unannounced inspections of records kept under 18 U.S.C. 2257.  Specifically, in Free Speech Coalition, Inc. v.  The Honorable Eric H. Holder, Jr, EDNY (09-4607) (July 18, 2013), [READ CASE HERE] the United States District Court for the Eastern District of Pennsylvania ruled that
[T]he Court finds Sections 2257 and 2257A and their corresponding regulations to be constitutional under the First Amendment, both as-applied and facially. It also finds the Statutes and regulations to be constitutional under the Fourth Amendment, except for in one regard – the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record.
Id. at 2.

          The basis for the ruling was that the government could not demonstrate that the requirement met the constitutional standard. As the Court stated, “[g]iven these two streams of evidence in the record – demonstrating advance notice would not undermine the regulatory scheme, but a lack of such notice significantly burdens producers who maintain records at home – the Court finds the regulations’ lack of a notice requirement, as to searches at bona fide residences, unreasonable …” Id. at 69.

          The Court focused on the fact that many producers of adult content keep the records in their homes. Therefore, the requirement that the FBI be allowed to inspect the records without advance notice meant that the residents would be burdened by the need to remain on premises to allow access. This burden was found to be unconstitutional.

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© 2014 Nissenbaum Law Group, LLC

Do the recordkeeping, labeling and inspection requirements of the Child Protection and Obscenity Enforcement Act violate the First and Fourth Amendment rights?

In July 2010, almost 22 years after the enactment of the Child Protection and Obscenity Enforcement Act, 18 U.S.C. Section 2257, (“Act”) the United States District Court for the Easter District of Pennsylvania was once again asked to address the constitutionality of certain provisions of the Act. Free Speech Coalition, Inc., et al. v. Hon. Eric Holder, 729 F.Supp.2d 691 (E. D. Pa., 2010).

In this case, Plaintiffs’, a group of producers and distributors of sexually explicit materials brought a lawsuit against the Government alleging that the Child Protection and Obscenity Enforcement Act’s recordkeeping, labeling, and inspection requirements violated their First and Fourth Amendment rights. Plaintiffs’ specifically asserted that the age verification requirements of § 2257 and § 2257A went too far and violated their constitutional rights.

§2257 of the Act provides that “producers of certain visual depictions of actual sexually explicit conduct ‘shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.’” 18 U.S.C. §2257(a). Thus, the producers are required to verify the performer’s name and date of birth and also maintain a record of such information. § 2257A of the Act applies the same recordkeeping, inspection and labeling requirements to depictions of simulated sexually explicit conduct. 18 U.S.C. § 2257A. Plaintiffs’ contend that § 2257 and § 2257A are content-based regulations, and they violate their First Amendment rights.

In arriving at its decision, the Court focused on the distinction between content-based and content-neutral statutes. It also considered the rulings of two Circuit courts and a District Court on the same issue with regard to section §2257 of the Act. The Court held that the burden placed by the age-verification requirement on the constitutionally protected expression is proper. It is in furtherance of a purpose (protecting children from being sexually exploited) which is completely unrelated to the underlying message of the protected expression. Moreover, these requirements are narrowly tailored means to combat child pornography and do not suppress constitutionally protected speech.  Thus, the Court followed its precedent in upholding the recordkeeping requirements of the Act. See American Library Ass’n v. Reno, 33 F.3d 78 (D.C. Cir. 1994); Connection Distrib. Co. v. Holder, 557 F.3d 321 (6th Cir. 2009); Free Speech Coalition v. Gonzales, 406 F. Supp. 2d 1196 (D. Colo., 2005).

The Plaintiffs’ also alleged that the inspection requirement of the Act violated their Fourth Amendment right to privacy because it constituted warrantless search and seizure. The Court disagreed and held that the Plaintiffs’ did not have any reasonable expectation of privacy in the records they were required to maintain. The Court held that the inspection requirement also “amounts to a valid warrantless administrative search.” Id at 698.

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