By Nick Rummell, Courthouse News Service

PHILADELPHIA — Federal recordkeeping measures to ensure porn stars are of legal age are unconstitutional because they allow impromptu warrantless searches, the Third Circuit Court of Appeals ruled June 8.

In its 65-page split ruling (pdf), the Third Circuit said the warrantless searches permitted by two federal statutes violate the First and Fourth amendments because the porn industry is not as heavily regulated as other industries that are subjected to such searches, such as firearms dealers or junkyards.

However, the Philadelphia-based appeals court denied a permanent injunction on the statutes, which was requested by pornography association Free Speech Coalition, instead kicking the case back to Eastern Pennsylvania Federal Court to determine whether a narrowly tailored version of the statutes can pass muster.

The underlying lawsuit, filed by the coalition, alleged that the rules permitted investigators to enter unannounced and without warrants.

The recordkeeping statutes stem from amendments in 1988 to a law criminalizing the use of children in sexually explicit materials. However, many pornographers continued to use young-looking performers in porn, leading to concerns they were skirting the age requirements. The minimum age to perform in pornography is 18 years old.

Section 2257 was amended to require pornographers to keep “individually identifiable records” documenting each porn performer’s age and identity. It also required producers to make their records available to investigators for at least 20 hours per week. Investigators are allowed to visit a producer no more than once every four months except in cases involving “reasonable suspicion” that a violation has occurred.

The statue carries a potential five-year prison sentence for first-time violators and as much as 10 years behind bars for recidivists.

In 2009, a federal judge rejected the lawsuit, but the Free Speech Coalition and others appealed it to the Third Circuit, which heard arguments on the recordkeeping laws three times already. In the first case, the court ruled that the statutes’ allowance of impromptu visits by inspectors violated the Fourth Amendment.

The second time around, the Third Circuit added that porn producers suffered another Fourth Amendment injury due to additional administrative rules. The third case remanded the dispute back to Federal Court to determine whether the statute’s 20-hour weekly requirement for making records available ran afoul of the First Amendment.

In Wednesday’s ruling, Third Circuit Judge D. Brooks Smith relied on precedent set by the U.S. Supreme Court in Reed v. Town of Gilbert, in which advertising limitations were found to have regulated free speech. In Reed, the high court had instructed that courts could not determine the constitutionality of a facially content-based law based on underlying motives, even if they were benign.

In its ruling, the Third Circuit agreed with that rationale, saying Section 2257 was content-based and thus the law’s motives made no difference to its constitutionality.

“Despite the very commendable purpose of seeking to prevent child pornography by making it easier for law enforcement officials to ascertain the ages of the performers in the pornographic materials, we can no longer look to the purpose of a law that draws a content-based distinction on its face in determining what level of scrutiny to apply,” Smith wrote.

The Third Circuit also found that the rules governing pornographers were not as stringent as those governing other industries, such as state regulations on horseracing in New Jersey or on funeral homes in Pennsylvania. Further, no inspections of pornographers’ records have occurred since 2007, which made it difficult to swallow the government’s argument that warrantless searches should be allowed.

“An artist can pick up a camera and create an image subject to the statutes without the knowledge of any third party, much less then government,” Smith wrote. “The creation of sexually explicit expression is better characterized by its lack of regulation than by a regime of rules governing such expression.”

Further, as admitted by government attorneys, warrantless searches were all but useless anyway, since FBI agents testified that pornographers would be hard-pressed to whip up Section 2257 records in short notice, according to the ruling.

Judge Anthony Scirica joined Smith in the majority opinion.

In a dissenting opinion, Judge Marjorie Rendell said the Third Circuit should have looked differently at the statutes, which may have been constitutional because they were designed to reduce the secondary effect of child pornography.

Rendell cited a Ninth Circuit case, which held that secondary effects needed to be taken into account in certain free speech cases. She also noted that the Supreme Court muddied the waters with the Reed decision because the high court’s opinion did not explicitly address the secondary effects, but that the high court has repeatedly held in favor of the secondary-effects doctrine in cases involving sexually explicit speech.

“[T]his kind of speech, though protected, categorically deserves less protection than other kinds of protected speech,” she wrote. “That is because, simply put, sexually explicit speech is not as vital to our society as other kids of protected speech.”

Attorney Lorraine Baumgardner of Berman, Gordon, Murray & Devan, who represented the plaintiffs, praised the decision, saying it correctly upheld the strict scrutiny test to the statutes.

To Learn More:

Federal Appeals Panel Rules Cell Phone Tracking Data Held by Service Providers is protected by Fourth Amendment (by Steve Straehley, AllGov)

Police May Take DNA Sample without Warrant after Arrest, Supreme Court Rules in Unusual Split Decision (by Danny Biederman and Noel Brinkerhoff, AllGov)

IRS Accused of Ignoring Ruling Requiring Warrants to Spy on Email (by Noel Brinkerhoff, AllGov)