Age-Tracking Porn Stars Faces 3rd Turn at the 3rd

PHILADELPHIA (CN) - The Third Circuit considered laws governing pornography for the third time Wednesday, with filmmakers claiming that new precedent sounded the death knell on federal record-keeping requirements.

Sections 2257 and 2257A of Title 19 require that anyone producing "sexually explicit" imagery maintain meticulous records of the subjects, no matter their ages, to ensure that they are not minors.

Producers must keep three sets of documents cross-referenced to one another and have them readily available for federal agents who wish to inspect them. Violators face criminal penalties and a maximum of five years in prison for the first violation and ten years for the second.

The Free Speech Coalition, a trade association of pornographers, has been fighting the regulations as unconstitutional for years.

When the Third Circuit first considered the case, it revived the challengers' claims under the First and Fourth Amendments. After a bench trial, a federal judge subsequently upheld the statutes for the most part but found that impromptu records inspections at private residences violated the Fourth Amendment.

This past May, the Third Circuit agreed that the porn producers suffered a Fourth Amendment injury from the laws' administrative-search regime.

Though the court also upheld the statutes and regulations generally under the First Amendment, it remanded for free-speech consideration of a provision that requires producers to make their records available for at least 20 hours a week.

The coalition sought a panel rehearing, however, when that June the U.S. Supreme Court decided the case Reed v. Town of Gilbert.

Reed involved advertising limitations that the court found had regulated the content of speech. Attorneys for the coalition with the firm Berkman, Gordon, Murray & Devan said the statutes they are challenging meet the same definition.

At Wednesday's hearing, the government argued that its threshold is lower, since targeted content is child porn and not images of adults, allowing the law more breadth.

"The government is truly not trying to regulate speech," Justice Department attorney Anne Murphy said. "It has a different interest and it happens to have an impact on speech."

Murphy demurred when Judge Marjorie Rendell asked if he wants a second trial.

"We think the court is in the position to make the decision itself," Murphy said.

Rendell pressed on. "The record shows now that there's a substantial [older population in the cataloged content] that would seem to be beyond what's necessary," she said.

Judge Anthony Scirica asked Murphy whether there were less-burdensome means to enforce the law, including requiring records only for subjects under 30 years old. Murphy requested that the court let her confer with the government and later submit a supplemental brief to answer his question.

J. Michael Murray of Berkman Gordon argued for the coalition and its co-plaintiffs, which include the American Society of Media Photographers, the sex toy store Sinclair Institute, and the sexologist Carol Queen.

Queen ho claims that the law would hamper the chronicling of her annual Masturbate-A-Thon - a large demonstration of public masturbation.

Judge D. Brooks Smith rounded out the appellate panel.

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