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

Is there a Cliff's notes on this?

I'll cliff it for you.

The government wanted to get the court to dismiss the suit.

The court said no, the suit can continue.

This is arguably better for us, worse for the porn poh-leeece.

Just a tad bit more complicated, but that's approximately right. (The first amendment claims would have continued anyway, this was a motion for "partial dismissal" of the privacy claims. Check this out -

I posted about it in November, introducing an article I wrote for XBIZ 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.

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.

- Joe
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