Citing voluminous filings and a preference for airing controversial issues – such as balancing free speech with deterrence of child pornography – in an "open courtroom," a federal judge has denied summary judgment to both sides of a case testing federal regulation of pornography.

A group of more than a dozen organizations and individuals that make or distribute sexual images brought the case challenging the constitutionality of a federal law that would require them to keep detailed lists of their actors in 2009 and appealed the district court’s dismissal of the suit. Last year, the U.S. Court of Appeals for the Third Circuit remanded the case for further exploration of the plaintiffs’ First and Fourth amendment claims.

"Most importantly, this case touches upon important, controversial issues which are frequently debated in public," said U.S. District Senior Judge Michael M. Baylson of the Eastern District of Pennsylvania in Free Speech Coalition v. Holder. "As the Third Circuit remanded for a factual inquiry, an open courtroom with live witnesses is the best forum to assure a full and fair exposure of the issues," he said.

A trial is scheduled to begin next month.

The challenges are to two sections of the U.S. Code. Section 2257, 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 the opinion. Section 2257A, enacted in 2006, imposes the same requirements for illustrations of simulated sex acts.

The laws were motivated by Congress’ intent to stop child pornography.

The statutes must apply to all actors, "regardless of the actual or apparent ages of performers," the government had argued to the Third Circuit, because in many circumstances the adult film industry hires actors who look young and it is impossible to know by sight alone whether or not an actor is a minor. "Such a rule eliminates subjectivity as to which performers’ ages must be verified," it argued, maintaining that the statutes fit within the definition of being "narrowly tailored."

However, the plaintiffs argue that the statutes are overly broad.

They offered evidence that adults often send explicit sexual depictions to each other through smartphones, computers and social networking websites, all of which are outside of the commercial marketplace.

They also offered evidence that most pornography features subjects who are over 25 years old and can’t be confused with minors. One of their experts testified that 98 percent of commercial pornography features people who are obviously adults.

The plaintiffs argue that the statutes’ extension to private communication and to the huge quantity of depictions of clearly mature adults is an unreasonable burden on the right to free speech.

Because there are genuine disputes of material fact, Baylson declined to grant summary judgment as a matter of law to either party.

"To begin with, there is a genuine dispute on the critical question of whether the amount of expression unfairly burdened by Sections 2257 and 2257A is ‘substantial’ in comparison to the amount of expression reasonably made subject to the statutes in order to effectuate Congress’ goal of preventing child pornography," he said.

Similarly, Baylson held that there are still open questions with regard to the Fourth Amendment challenge, which stemmed from FBI inspections of the lists in 2006 and 2007.

"These questions of fact — concerning the expectations of privacy in the areas searched, the character of the searches and whether they progressed in a cooperative and consensual manner, and the overall reasonableness of the FBI’s conduct — are best resolved through trial, where there is the possibility for in-court testimony, credibility assessments, and cross-examination," Baylson said.

Beyond the unresolved questions of fact that demand a trial, Baylson said, "the material submitted by both parties on summary judgment stacked together are several feet high, representing hundreds of pages of briefs, allegedly undisputed facts, deposition excerpts, and other exhibits.

"The court cannot meaningfully digest all of this material and render a fully analytical memorandum opinion in the 14 days left until the trial begins. Reviewing even a portion of this material in the seven days since it has been filed has taken a great deal of time."

J. Michael Murray of Berkman, Gordon, Murray & DeVan in Cleveland represented the plaintiffs and couldn’t be reached for comment.

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

(Copies of the nine-page opinion in Free Speech Coalition v. Holder, PICS No. 13-1122, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)  •