April 16 (Reuters) - A U.S. appeals court on Monday revived
a lawsuit brought by members of the adult entertainment industry
which challenges federal laws requiring pornography producers to
report the ages of all performers.
A district judge had dismissed the case in 2010, finding
that the government could require all pornography producers to
verify the age of their performers and maintain identification
records for federal inspection. But the Philadelphia-based U.S.
Court of Appeals for the 3rd Circuit reversed the ruling and
reinstated claims that the regulations violated both the
producers' First Amendment right to free speech and their Fourth
Amendment protections against unreasonable searches.
The recordkeeping laws, designed to prevent child
pornography, carry criminal penalties for both primary producers
as well as secondary producers who republish pornography on
The Free Speech Coalition, a pornography trade organization,
and 14 other members of the adult entertainment industry sued in
2009 to block the regulations. They argued that the requirements
went further than necessary to protect children from
exploitation by pornographers. A large amount of pornography
includes clearly mature adults who could not be mistaken for
children, they argued.
The government responded that the industry's practice of
employing young-looking performers made it nearly impossible for
law enforcement officers to effectively investigate potential
The trial judge upheld the regulations, granting the
government's request to dismiss the suit. But the 3rd Circuit
disagreed, ruling that the plaintiffs should have an opportunity
to develop the case further to determine whether the regulations
are overly broad.
"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," Judge Brooks
Smith wrote for the three-judge panel.
Wyn Hornbuckle, a spokesman for the Department of Justice,
said lawyers for the government were reviewing the decision and
had no further comment.
Diane Duke, executive director of the Free Speech Coalition,
welcomed the ruling.
"We understand that regulations need to be there. We just
need regulations that are reasonable and that we can comply
with," she said, adding that a producer could face five years in
prison for misfiling a document.
The 3rd Circuit cited two other appellate decisions from the
District of Columbia Circuit and the 6th Circuit that previously
upheld the recordkeeping requirements against constitutional
The 3rd Circuit case is Free Speech Coalition et al v.
Attorney General of the United States, No. 10-4085.
For the Free Speech Coalition et al: J. Michael Murray of
Berkman, Gordon, Murray & DeVan.
For the Attorney General: Anne Murphy of the Justice
(Reporting By Terry Baynes)
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