Damn Interesting Developments Re 2257

[Joe Obenberger]

3rd Circuit Requests Supplemental Briefs Prior to 2257 Oral Arguments - XBIZ.com

http://www.xbiz.com/docs/xbiz/news/2...257%201115.pdf

XBIZ World - November 2015

[The Porn Nerd]

Translation for us laymen?

[Joe Obenberger]

Originally Posted by The Porn Nerd

Translation for us laymen?

The third link takes you to an article I wrote in the new edition of xbiz World that lays it all out pretty directly along with what it means. I guess that there is no way of direct linking the article, so you have to navigate to page 18.

This really is potentially an earthquake.

All of the legal justifications that governments in the US have used for the past fifty years to regulate adult businesses in a special way, different from other businesses - from the DOJ down to cities, town, and villages, - from zoning and licensing and hours of operation to signage to Section 2257 - all of it - was called into question by an obscure Supreme Court decision about church signs this Summer - and DOJ has officially put the issue on the judge's bench in Philadelphia. A great, great deal is at stake. It is possible that the obscure decision from the Arizona church just might, maybe, catastrophically affect the way the government can treat adult businesses differently from other businesses. It is hard to imagine that all of that would be overturned, changing the landscape, but the DOJ has now inserted that issue for the first time in this litigation since the FSC case was filed in 2009 - and the case is a potential hop, skip and jump to the Supreme Court. It gets REALLY interesting now, in a way that can affect the entire adult industry, including most especially brick and mortar. Do the old cases, like Renton, survive Reed v. Gilbert? That's what the Third Circuit is asking.

[Grapesoda]

Originally Posted by Joe Obenberger

The third link takes you to an article I wrote in the new edition of xbiz World that lays it all out pretty directly along with what it means. I guess that there is no way of direct linking the article, so you have to navigate to page 18.

This really is potentially an earthquake.

All of the legal justifications that governments in the US have used for the past fifty years to regulate adult businesses in a special way, different from other businesses - from the DOJ down to cities, town, and villages, - from zoning and licensing and hours of operation to signage to Section 2257 - all of it - was called into question by an obscure Supreme Court decision about church signs this Summer - and DOJ has officially put the issue on the judge's bench in Philadelphia. A great, great deal is at stake. It is possible that the obscure decision from the Arizona church just might, maybe, catastrophically affect the way the government can treat adult businesses differently from other businesses. It is hard to imagine that all of that would be overturned, changing the landscape, but the DOJ has now inserted that issue for the first time in this litigation since the FSC case was filed in 2009 - and the case is a potential hop, skip and jump to the Supreme Court. It gets REALLY interesting now, in a way that can affect the entire adult industry, including most especially brick and mortar. Do the old cases, like Renton, survive Reed v. Gilbert? That's what the Third Circuit is asking.

be nice to have the bank bullshit go away and the 300% Insurance premiums

[suesheboy]

Very interesting

[Robbie]

Joe, are you saying this might be good? Or bad for us?

[ilnjscb]

Its a good article.
Joe, how old is that picture of you?

[Relentless]

Originally Posted by Robbie

Joe, are you saying this might be good? Or bad for us?

Yes. Exactly.

[_Richard_]

it has the potential of being good.. 2257 etc is all dependant on content-neutral laws, where this new ruling states that in order to actually read the sign to decide what laws apply to it, means that it is content-specific. potentially throwing out a great deal of laws that surround the industry

unfortunately it's the government and porn we're talking about. doubt anything will change

[JFK]

Originally Posted by _Richard_

unfortunately it's the government and porn we're talking about. doubt anything will change

yup

[Joe Obenberger]

I agree that it would be an utterly amazing result if, in the end, and after Supreme Court review, Renton vanishes, reversed, and all of the horrible things that ensued from it over the decades are reduced to footnotes in Law Review articles. The legal fiction - or downright lie - that lies behind Renton and all the cases that pointed to it for authority have been used everywhere, from Times Square to the North Side of Chicago, even in rural locations, to repress, limit, stifle, and injure adult entertainment. It's why Chicago, with four million people in the city itself, has and can only have four permitted gentlemen's clubs. Every other location is "too close" to residential uses. I don't expect that to happen, but it's hard to predict what this Supreme Court will do. It has upset the applecart WRT to gun rights, gay marriage, etc. and does not seem to be afraid of results with practically enormous consequences.

The Third Circuit (earlier this year) has already upheld the main parts of 2257, determining only the inspection requirements to be invalid, unconstitutional. But their reasoning is now suspect in light of the Reed case from the Supreme Court last Summer. So they granted rehearing, and that has the effect of entirely vacating their earlier decision. The whole 2257 case is once again up in the air in Philadelphia. The most recent request for short briefs dealing with Renton suggests that the Third Circuit wants to hear the government's argument in more detail why maybe the Renton line of cases can preserve their previous decision, reasoning on a somewhat different basis, one that government thinks (!) is more secure. Well, it's really not entirely clear that Renton applies here. The fiction was that Renton did not permit government to regulate adult content itself, but the "time, manner, and place" of expression so as to contain "adverse secondary effects" thought naturally to stem from adult entertainment, such as a reduction in property values, more nuisance crime drawn to the vicinity, etc. Well, the exploitation of children (the basis of Section 2257) does not even come close to inevitably stemming from adult pornography, so it's not really an "adverse secondary effect" of adult expression. Renton really has seldom been upheld outside of the context of zoning and separation, licensing, signage, and things like requiring separation between dancer and patron, the privacy of arcade booths, and the degree of nudity permitted. It is conceivable that the Third Circuit will determine that Renton just doesn't apply - and that the Supreme Court might agree - invalidating Section 2257 based on Reed and applying strict scrutiny. It is also possible that the Third Circuit will conclude that Reed either implicitly reverses Renton or that Renton must be sharply limited to control "natural" consequences of adult entertainment. In each of those cases, 2257 may fall. The worst result likely to come in a practical sense is that Renton is used to uphold 2257, which is (at least in the immediate future) no worse a result than the decision already handed down by the Third Circuit earlier this year.

xbiz put up a direct link to my article in the November xbiz World - XBIZ World - November 2015

Somebody asked about my picture. No idea. But it's still recognizably me, though it tends to show me in a mood far more serious than average.

[Barry-xlovecam]

1. The government has a public interest is assuring the age of majority of performers depicted in explicit sexual content. I would expect that §2256 would withstand scrutiny.
2. The government may not be able to regulate adult content's location ** on the internet [added]but they don't now -- they do not prohibit internet use of certain domains for pornographic content as an example.

I don't see this as a good thing if the ruling goes either way. If §2257 was struck down Congress most likely would see fit to modify the law to suit the Court.

What I think would be fair would be to require valid identification at the time of production for the record and that is it -- the rest is just bullshit and an attempt to preempt otherwise lawful adult expression

Burden of proof should be on the government -- §§ 2256 - 2257A is in USC Title 18 -- that is criminal code.

[Joe Obenberger]

Originally Posted by Barry-xlovecam

1. The government has a public interest is assuring the age of majority of performers depicted in explicit sexual content. I would expect that §2256 would withstand scrutiny.
2. The government may not be able to regulate adult content's location ** on the internet [added]but they don't now -- they do not prohibit internet use of certain domains for pornographic content as an example.

I don't see this as a good thing if the ruling goes either way. If §2257 was struck down Congress most likely would see fit to modify the law to suit the Court.

What I think would be fair would be to require valid identification at the time of production for the record and that is it -- the rest is just bullshit and an attempt to preempt otherwise lawful adult expression

Burden of proof should be on the government -- §§ 2256 - 2257A is in USC Title 18 -- that is criminal code.

Congress's power does end at the limits of the constitution - that's the entire point of this litigation, that they went too far. And your reply is that they can learn from the decision, take a second look, and pass another law with provisions that actually is within their power. The extent to which they can do that depends on how the courts decide this case and how they explain their decision.

There have been many attacks on Section 2257 for more than twenty years, and the statute has changed much because of the litigation. When 2257 was first enacted, it provided a presumption that, if you did not keep required records, then the model was presumed to be underage. That didn't not survive the courts! There have been other smallish victories and statutes and regs have changed to adapt - one easy example is how much of the "depiction" needs to be in your records regarding a streaming webcam show - the judge in Denver found that the economic cost of keeping many terabytes of entire shows imposed an improper burden on expression and invalidated it, and eventually the regs were changed in lline. Here's a history of all of the cases and changes to the regs and the statute from the start. (It needs to be updated to this 2015 developments.) XXXLAW -Section 2257 - All the Judicial Cases and Congressional Amendments

Sometimes, a decision can be so broad that it gives Congress little maneuverability.

[Barry-xlovecam]

The big problem I see is the ''usual suspects'' are still in power in Congress. I would be very surprised if we see a major change in both Congress' composition and intent from what we see today and from the Congress' that promulgated §2257 from the beginning. This goes back a generation now and is really a joke that is litigated over and over.

As a US citizen: I would like to see some of these laws tempered by some constitutional sanity.