Fight Over Age Records for Porn Stars Returns to Third Circuit

PHILADELPHIA (CN) – The Third Circuit examined laws aimed at preventing child pornography for the fourth time Thursday as adult filmmakers continue to argue that keeping records of performers’ ages is unconstitutional.

The James A. Byrne United States Courthouse in Philadelphia, home of the Third Circuit Court of Appeals. (Photo via Beyond My Ken/Wikipedia Commons)

“When there are sexually explicit images of real people we need to make sure that those people are at least 18 years old,” Justice Department attorney Anne Murphy told the three-judge panel.

The lawsuit brought by the Free Speech Coalition stems from statutes 2257 and 2257A of Title 19 that require those producing sexually explicit content to keep records of the subjects to ensure they are not minors, no matter their age. Further, the statutes allow for warrantless searches of the producers to obtain said records, despite the fact that the government hasn’t done a record check in years.

The judges have sided with the coalition the past three times the case has been in front of the Philadelphia-based appeals court, finding each time that the producers suffered some variation of a First and Fourth Amendment injury due to the restrictive administrative rules.

At oral arguments Thursday, the government maintained that age verification is essential to prevent the spreading of child pornography.

U.S. Circuit Judge Thomas Hardiman agreed this is an important issue, but questioned Murphy as to why the government could not allow the statutes to address performers that appear to be under 30 years old.

Murphy noted that while the concept is less restrictive, not all content shows parts of the performer’s body that can verify an age, referencing a site run by one of the plaintiffs that simply shows photos of people’s genitals.

Seeking to affirm a federal judge’s invalidation of a permanent injunction to enforce the statutes, Free Speech Coalition’s attorney Michael Murray argued that everyday people posting sexual images would have to follow these statutes.

“Millions of Americans that take sexually explicit images of themselves and post them online, this statue would require them to oblige,” said Murray of Berkman Gordon Murray & DeVan. “Limiting the statute to commercial productions would be less restrictive.”

Further pushing his point, Murray added that the government has not provided enough proof that there is a lot of sexually explicit content that depicts performers that could be confused as a minor, but notes there is an “enormous quantity” of content that clearly depicts performers over 35 years old.

Hardiman seemed to find Murray’s argument confusing.

“Are you saying that as a matter of law, if the government says, ‘we’ve got tens of millions of images out there that are clearly underage or an age that could be confusing,’ it hasn’t demonstrated it has a factual foundation to show proof?” the judge asked.

Murray argued that was not enough, so long as there is still more content with clearly mature performers out there.

The three-judge panel was rounded out by U.S. Circuit Judges Michael Chagares and Luis Felipe Restrepo. It is unclear when the panel will issue a ruling.

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