Judge Baylson's 2257 Order Posted - FSC Case, Philadelphia

[Joe Obenberger]

http://www.xxxlaw.com/news/Materials...rt.dis.web.pdf

[AdultPornMasta]

Originally Posted by Joe Obenberger

http://www.xxxlaw.com/news/Materials...rt.dis.web.pdf

OK, my Learned Juris Doctor, what is the short and sweet of this?

I'm not picking on you but you'd be one Hell of a lot better off by opining as to the effect of this case and ruling than posting the PDF. and requiring non-legal persons to interpret.

I AM on your side!

[Far-L]

Originally Posted by Joe Obenberger

http://www.xxxlaw.com/news/Materials...rt.dis.web.pdf

Motion...

DENIED!

Doesn't mean more than a baby step forward but at least it is a reasonable adjudication of the facts.

[Far-L]

Originally Posted by AdultPornMasta

OK, my Learned Juris Doctor, what is the short and sweet of this?

I'm not picking on you but you'd be one Hell of a lot better off by opining as to the effect of this case and ruling than posting the PDF. and requiring non-legal persons to interpret.

I AM on your side!

Gov didn't want case to go forward and asked for dismissal. Judge said no, wrong, guess again, on every single point the Gov made.

[Barry-xlovecam]

Maybe, this case will settle the matter?

I never thought a peremptory challenge would succeed frankly but had always thought that it would take a criminal case to strike §§ 2257, 2257A down as unconstitutional.

[Joe Obenberger]

Originally Posted by AdultPornMasta

OK, my Learned Juris Doctor, what is the short and sweet of this?

I'm not picking on you but you'd be one Hell of a lot better off by opining as to the effect of this case and ruling than posting the PDF. and requiring non-legal persons to interpret.

I AM on your side!

Sorry! I get so wrapped up in this that sometimes I forget that there are people who don't follow this hardly at all.

I posted about it in November, introducing an article I wrote for XBIZ (can I mention it here without getting into trouble?) before the hearing and laying out the issues. You can read the article which explains the importance of these issues at http://www.xxxlaw.com/articles/phili...adte-xbiz.html.

In a nutshell, DOJ argued that the constitutional Privacy issues - about whether the inspections would be unconstitutional - were not "ripe" because no inspections were going on or even slated or even budgeted - and no written protocols for them existed. They wanted to dodge the bullet and avoid arguing about that. All this justified because of their own decision NOT to conduct inspections, as fleshed out in an FBI Agent's affidavit. All this stuff is on my site under "News" in November. This judge told them to go to hell. This is the same judge who kicked FSC out of court in 2010 and got reversed on that by the court upstairs, the Third Circuit. He's been preached to and now has the gospel. If you read this decision, it doesn't even seem like the same judge.

- Joe

[Joe Obenberger]

Originally Posted by Barry-xlovecam

Maybe, this case will settle the matter?

I never thought a peremptory challenge would succeed frankly but had always thought that it would take a criminal case to strike §§ 2257, 2257A down as unconstitutional.

A nice thought, but not hardly. It only means that they have to fight the privacy issues and their bid to fight those one at a time in criminal cases got rejected.

They stopped those inspections for tactical reasons, and that becomes more clear after you read their pleadings and see what they tried to pull here. Now that they lost, only two reasons exist to restrain them from inspections: a. They still want to avoid creating embarassing facts. If they do no inspections, there will be no atrocities that will shock a judge to deal with and explain, and b. The risk that their agents just might get sued for violation of the rights of producers when, on the basis of that 6th Circuit opinion - later reversed - that the whole thing was an invasion of privacy.

The most critical development in this whole case - IMHO - is when the 3rd Circuit resurrected the ideas of that first panel in the 6th Circuit - that no matter what DOJ said in its public Comments back in 2008 when they promulgated this, that IT DOES apply to private, noncommercial people and their intimate home videos - and makes it a federal crime to refuse to show a husband-wife cell phone oral pleasure video to an agent. That's outrageous, but those Ohio judges and now the Philadelphia judges are looking at it that way, and if ultimately the Supreme Court sees it that way, there is no way in hell that this statute will be held to be constitutional. My humble opinion. Truly humble.

[V_RocKs]

Nice... I always thought this would pan out in our favor...

[Relentless]

In other news, if the government passes a law that anyone over age forty should be killed by firing squad - you can challenge that too... Even if they haven't actually shot anyone yet or haven't shot anyone new in a while.

It's nice to 'win one', but this ruling has nothing to do with the legality or illegality of 2257. It covers only the notion that an uninforced law is still a law and therefore is subject to being challenged. Nothing more than that has been adjudicated so far, unless I'm missing something? It beats beng ruled against for sure, but I wouldn't start warming up the 2257 document shredders just yet...

[Joe Obenberger]

Originally Posted by Relentless

In other news, if the government passes a law that anyone over age forty should be killed by firing squad - you can challenge that too... Even if they haven't actually shot anyone yet or haven't shot anyone new in a while.

It's nice to 'win one', but this ruling has nothing to do with the legality or illegality of 2257. It covers only the notion that an uninforced law is still a law and therefore is subject to being challenged. Nothing more than that has been adjudicated so far, unless I'm missing something? It beats beng ruled against for sure, but I wouldn't start warming up the 2257 document shredders just yet...

That's correct. It's procedural and not substantive, meaning that nobody's rights have been ruled on and no one has decided whether it's constitutional or not. It's a skirmish in a long war, but an important one. DOJ did not want to deal with the constitutionality of the scheme of inspections against privacy arguments, but now they must. They argue that these are "administrative inspections" of records that were created just for legal compliance, and so therefore they were created without an expectation of any privacy. And they did not want to deal with that argument in this lawsuit. Now they must. And that's critical because the majority of 2257 records, to my knowledge and experience, are held in private homes and inspections would affect people who work out of their residence and their families. To say that a pack of FBI Agents going into a place where children play and where the wife changes does not implicate privacy is absurd. That's the predominant number of producers over the years. And, inasmuch as this law seems to apply to noncommercial, private images in the opinion of the 3rd Circuit, the large majority of such "records", including the sexually explicit depictions themselves, are held in the places where the law has the utmost legal respect for privacy, at home, with the wife and kids. They really wanted to dodge that bullet, and they played a game of nonenforcement/nonispection because they are afraid that the whole house of cards may collapse on that front. Or that's how I see it. I am not involved in this lawsuit except as an observer, but that's how it looks from here.

To another poster, it's a long, long way from final decision. Years.