A suit challenging two statutes that require pornographers to keep lists of their actors and make them available to the government has survived in federal court.

The U.S. Court of Appeals for the Third Circuit remanded it to the district court earlier this year in order to let the record develop.

In an opinion issued last week, U.S. District Judge Michael M. Baylson of the Eastern District of Pennsylvania denied the government’s motion to dismiss the amended complaint filed by the plaintiffs after the Third Circuit’s ruling.

“As long as the statutes are in force, plaintiffs, all of whom are ‘producers,’ stand in danger of being subjected to intrusive and allegedly unconstitutional searches at virtually any hour of the workday,” Baylson said in Free Speech Coalition v. Holder, finding that the plaintiffs had standing.

The statutes apply to anyone who makes pornographic images, whether still or on film, calling them “producers.”

The plaintiffs are more than a dozen organizations and individuals who make or distribute sexual images.

Section 2257 of the U.S. Code, enacted in 1988, requires that producers of sexually explicit material maintain a record of the name and birth date of every performer in a given work, post a statement about where the records are located, and make the records available to the attorney general “at all reasonable times,” according to court papers. Section 2257A, enacted in 2006, imposes the same requirements for illustrations of simulated sex acts.

Since the statutes require that producers’ records of actors be made available to government officials, the plaintiffs argued that the manner in which that right was exercised violated the Fourth Amendment.

The laws sprang from Congress’ intent to stop child pornography.

The government argued that the plaintiffs’ Fourth Amendment claim should be dismissed for lack of subject matter jurisdiction on the grounds that they don’t have standing and that the claim isn’t ripe.

On the issue of standing, the government argued that the plaintiffs couldn’t show that they faced a genuine threat of inspection seeking the records, so the injunction they seek wouldn’t redress their claimed injuries.

To make its point, the government relied on an affidavit from an FBI agent stating that the bureau had dismantled its Section 2257 inspection team in 2007 after the Sixth Circuit found that the statute violated the First Amendment. That decision was later reversed by an en banc panel of the court, but the program hasn’t been reinstated, according to the opinion.

However, Baylson wasn’t convinced that the breakdown of the machinery for inspection meant that there would be no future threat of inspection.

“Plaintiffs face a substantial possibility of injury — that is, being subjected to allegedly unconstitutional searches about which they complain — as a result of the plain operation of the statute,” Baylson said.

Similarly, he found no value in the point that the FBI had conducted no Section 2257 inspections since 2007.

“The fact that no searches have been conducted since 2007 is not consequential because as long as Section 2257 is in force, the searches could be resumed at any moment,” Baylson said.

He bolstered that finding by citing the D.C. Circuit and the U.S. Supreme Court, concluding, “A change in FBI priorities, or a new FBI director, or a new attorney general, could summarily negate the policies attested to in [the FBI agent's] affidavit. The court cannot ignore the potential impact of a congressional statute.”

Additionally, Baylson found that the plaintiffs have standing because they bear significant costs related to the statutes’ requirement that they maintain records for seven years from the date they create the material and make those records available to investigators, who don’t need a warrant.

“Courts have made clear that when plaintiffs absorb significant costs to comply with a statute, this situation can supply the requisite standing to bring a pre-enforcement suit for equitable relief,” Baylson said, noting, among other cases, the Third Circuit’s 2010 holding in Lozano v. City of Hazleton, which allowed employers to have standing to challenge an immigration ordinance since it imposed significant obligations on them before they could hire people.

Baylson also sided with the plaintiffs on the issue of ripeness. Citing the Third Circuit’s 2012 holding in Lewis v. Alexander, Baylson said, “When a statute requires a class of persons to conduct their behavior in a particular way, and the government has the right to enforce the statute, and the affected persons would be risking legal sanction if they chose not to comply, Step-Saver is satisfied. The direct impact of the statute on the regulated entities and their potential for prosecution if they choose not to comply establishes ripeness.”

The Step-Saver test comes from the Third Circuit’s 1990 opinion in Step-Saver Data Systems v. Wyse Technology — it was the test advocated for by the plaintiffs.

The government had argued for the application of a more general test for ripeness that came from the U.S. Supreme Court’s 1967 opinion in Abbott Laboratories v. Gardner.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the 16-page opinion in Free Speech Coalition v. Holder, PICS No. 12-2298, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •