Court revives porn industry’s constitutional challenges of record-keeping requirements

3rd Circuit tells adult entertainment industry to engage in discovery to see if statutes violate the Constitution

The adult-entertainment industry has been battling what it perceives to be overbroad regulation since 2009, when organizations and individuals affiliated with the industry filed a complaint challenging the constitutionality of two statutes, 18 U.S.C. Sections 2257 and 2257A. These statutes require producers of sexually explicit content to keep records of the performers’ ages and make them available to the attorney general “for inspection at all reasonable times.” 

The goal of these regulations, of course, is to verify that pornographic material only features people who are 18 or older, and to prevent the creation of child pornography. However, the plaintiffs in this case say the requirements infringe on their First and Fourth Amendment rights. And this time, a court is listening to them.

“The government really has such a strong substantial interest in protecting children, and even this court is giving that credence,” says Foley & Lardner Partner Lisa Noller. “The plaintiffs have a huge uphill battle.”

In her concurrence, Judge Marjorie Rendell disagreed that the government sufficientlyproved that the statutes advance this interest. “The record contains no evidence as to producers’ or the government’s experience under the statute, and, therefore, no means of assessing whether the requirements actually have had any deterrent or preventative effect,” she wrote.

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