The movie industry long has fought any efforts to impose content-based restrictions, with the courts and the law recognizing and giving wide berth to Hollywood’s First Amendment privileges.
But a surrogate sector of movie making–the billion-dollar adult entertainment industry–almost from its start has borne the brunt of efforts to impose government restrictions, also battling in the highest courts over whether blue laws are reasonable or outright censorship. These movies makers scored a win recently when the U.S. Third Circuit Court of Appeals threw out a lower court decision and ruled in their favor on a case involving performers and film-makers’ need to maintain records about them.
Though proponents of the requirements said they provided a deterrent to exploitation of under-age actors and actresses and a tool to combat child pornography, which isn’t constitutionally protected, opponents said the rules edged into the territory of content controls barred by the First Amendment.
The records requirements (as spelled out in the U.S. Code as 2257 and 2557A) would have forced blue movie-makers to keep the names, ages, and aliases of performers involved in explicit content with depictions of actual or simulated sexually explicit conduct. Further, as a Harvard blogger noted of the records, they could “be inspected (without warrants, though that’s a different aspect of this case) by the Attorney General (which is to say federal law enforcement), with the purpose of preventing underage performers from being so depicted.”
The court found that this records-keeping passed the line of just regulation. The appeals judge said they needed to pass additional legal hurdles, including analysis under a strict First Amendment scrutiny.
“The government is wrong,” the appellate judges wrote in their 65-page holding, in which the legal reporting blog Law360 noted, “In the precedential ruling, the Third Circuit shot down the government’s argument that the secondary-effects doctrine,” and its lower standard of intermediate scrutiny, should apply to the record keeping law.
Revisting an appellate ruling
Under the secondary-effects doctrine, a statute would be considered content-neutral, only if the measure’s target was the “adverse secondary effects of protected speech and not the speech itself,” as Bloomberg Legal explained. In reaching their decision, the appellate judges, splitting 2-1, “felt compelled to revisit its prior ruling based on last term’s Supreme Court opinion in Reed v. Town of Gilbert, which held that facially content-based laws must face strict scrutiny,” Bloomberg Legal said.
The appellate judges may have returned to Reed because, in it, they had turned “away from decades of case law in which the [U.S. Supreme] Court insisted that courts should determine the content neutrality of speech regulations (and hence the standard of review) by looking at the government’s purposes,” University of Chicago Law professor Genevieve Lakier told Bloomberg Legal. Reed, instead, insisted that laws that “make facial content distinctions are always content-based laws, and therefore subject to strict scrutiny, regardless of the law’s intention.”
Using strict-scrutiny, the record-keeping statutes would be content-based and First Amendment barred, the appellate court found. That issue will be taken up first by the district court on remand. The Harvard law bloggers say this opinion tests the breadth and effect of Reed, which has legal scholars concerned over First Amendment expansions and government officials uncertain about their regulatory capacities.
Bloomberg Legal said scholars find the “decision is ‘very worrying’ in how it limits the protection given to disfavored speakers.” T]he majority opinion shows “Reed’s ‘deregulatory effect’ by finding ‘content-based laws’ that had been earlier upheld on multiple occasions (including by the same court), as content-neutral,” Lakier said. In turn, scholars like Lakier fear that Reed could have “potentially sweeping implications “on laws that make content distinction on their face, common at both federal and state levels.”