CLEVELAND - In discussing the Sixth Circuit Court of Appeals' affirmation of the legitimacy of the federal recordkeeping and labeling law, 18 U.S.C. §2257, let's first review what we know:
1) It doesn't work. All four of the underage performers, beginning with Traci Lords, who have been found over the past nearly 25 years to have participated in adult movies produced by reputable adult companies came into the industry equipped with excellent though false identification documents - in Traci's case, a U.S. government passport, while others used driver's licenses.
2) It can't work. While the law requires adult producers to inspect the government-issued picture identification document which an aspiring performer must present before being allowed to appear in sexually explicit conduct in front of a camera, it doesn't (and, absent further legislation, can't) require that producer (or his/her agent) to be an expert in spotting false IDs. Therefore, simply requiring IDs to be presented doesn't assure that no underage performers will appear in adult movies.
3) It isn't necessary. Child pornography - sexually explicit images and video featuring minors - is illegal in all states, with severe prison terms waiting for anyone caught producing same. So whether or not an adult producer keeps IDs on the performers in its movies, if a performer in any of those movies is found to be underage, that producer is criminally liable for having produced child pornography, and in addition to whatever prison term is imposed, will have to spend thousands of dollars recalling and destroying the movie in question. Even an accusation of child porn, however untrue, will likely wind up costing the producer hundreds of thousands of dollars in attorney fees, so producers will undoubtedly find it in their best interests to keep identification documents whether or not 2257 exists.
4) It's unconstitutionally overbroad. The Internet Adult Film Database claims to list 86,629 people who have appeared in or directed sexually explicit movies from the adult industry's earliest days, and it is not unreasonable to assume that more than half that number have appeared in such movies from reputable adult producers since 2257 took effect in 1995. Of that number, exactly four have been underage. That means that all the rest of them have appeared legally and need not, absent 2257, have presented any IDs in order to do so. Yet the law requires that producers keep IDs, and in multiple ways cross-index those IDs, for over 40,000 people who have done nothing more than simply to take off their clothes and have their sexual acts recorded for sale on film or videotape. That's a hell of a lot of time and money spent uselessly filing and indexing meaningless pieces of paper (see points 1 and 2 above) from people who have not even arguably committed a crime.
Which brings us to the Sixth Circuit en banc panel's decision, issued Feb. 20, in Connection Distributing Co. v. Holder, upholding the validity of 2257 both on its face and as applied to contact magazine publisher Connection Distributing in particular. The decision also denies the claim that complying with 2257 forces producers of sexually explicit content - in this case, both publisher Rondee Kamins and an adult "swinger" couple - to give up their Fifth Amendment right not to testify against themselves.
"No one disputes that the government's interest in protecting children is 'substantial'," claimed Judge Jeffrey Sutton, writing for the Court's majority. "And a universal age-verification requirement advances that interest in a reasonably tailored way for several reasons: It ensures that primary producers of pornography confirm that performers are of age before filming them; it permits secondary producers (who rarely will know the performers) to ensure that the individuals depicted in their publications are of age; it prevents children from attempting to pass themselves off as adults; and it creates a compliance system in which law-enforcement officers not only can identify the performers depicted in magazines and movies and verify their ages but also can eliminate subjective disputes with producers over whether a model's apparent age should have triggered an age-verification check."
As noted above, however, 2257 "ensures" none of those things, and any adult producer, "primary" or "secondary," who wishes to avoid charges, even bogus ones, of child pornography will demand to see the very picture IDs that 2257 references - and it will rightly take a failure to produce same as a sign not to publish the image.
"No doubt requiring identification only where the individuals appear to be below a threshold age 'would lead to accurate determinations in many cases'," the opinion continued. "But it could not do so without injecting 'an ineffectual subjectivity' into the proof-of-age requirement and without effectively delegating enforcement of this critical issue to the industry being regulated-two of the problems Congress permissibly sought to correct." [Citations omitted here and below]
This assertion is incorrect on its face. Enforcement of child pornography laws is and always has resided with the court system. Those who violate child porn laws usually go to jail after a trial in which the government presents evidence that the person appearing in the nude or in sexually explicit conduct is underage, and the defendant attempts to refute that by producing the performer him/herself or other evidence pointing to the performer's adulthood. It is therefore very much in the producer's interest to avoid prison by the exact self-regulation this Court claims does not exist: By being able to prove that its employee is an adult - though sadly, if the producer is fooled by a good-looking counterfeit ID, no laws exist to punish the underage perpetrator of that fraud, only the producer and sellers of the image.
Much of the majority's opinion revolves around the question of "isolated body parts."
"In attempting to strike §2257 in its entirety on overbreadth grounds, Connection argues that the law would be unconstitutional as applied to a magazine that depicted only 'mature adult models,' who 'are clearly and visibly not minors'," Judge Sutton writes. "That may well be true, particularly if the magazine not only confined itself to self-evidently mature models but also did not permit the depiction of isolated body parts. The D.C. Circuit reached a similar conclusion, 'agree[ing] with [plaintiffs'] suggestions that certain applications of the record-keeping requirements may well exceed constitutional bounds,' noting that 'an illustrated sex manual for the elderly' would be 'an obvious example'."
"Even so, this argument does not supply a basis for invalidating §2257," the opinion continues. "Connection has not pointed us to any such magazine or book and has not introduced any evidence showing that this third-party situation [a "mature-only" contact magazine] even exists. That alone is reason enough to give us pause. But even if we accepted Connection's submission, even if we assumed in other words that such magazines and books exist and that §2257 could not validly be applied to them, that would not satisfy the company's burden for dispensing the 'strong medicine' of overbreadth. At this point in the case, there is little basis for dispute that §2257 complies with the First Amendment in most settings. As we have shown, it is constitutional as applied to Connection and the individual plaintiffs, and Connection does not dispute, and indeed all but concedes, that the law would be constitutional in most other settings."
Actually, Connection conceded nothing of the sort, though its attorney, J. Michael Murray, did say that if the statute were only applied to images of people aged 25 and under, it would be more narrowly tailored than the current law - but that the government had never proven that there was an actual problem that 2257 properly addressed. As Murray also noted, the test approved by the Supreme Court for overbreadth in this sort of situation is whether, as stated in Ashcroft v. Free Speech Coalition, the regulation "burdens substantially more constitutionally-protected speech than is necessary to remedy the problem."
In those terms, the answer is obvious: The overwhelming majority of persons who would have to submit IDs to producers of adult movies or swingers' magazines under 2257 are adults and, absent the current law, could create their sexually explicit imagery without any governmental oversight. Over the past 24 years since Traci Lords went public with her deception, just three more minors have been discovered - and, it is important to note, not in any way due to the existence of 2257 - and it seems likely, as one dissenter later opined, that legitimate contact magazines have seen even fewer minors, if any at all, because swingers are, at least for the most part, not child molesters. Moreover, people who intentionally produce child pornography do not even attempt to keep records as to the ages of their "models."
The en banc panel also took issue with one of the central problems, at least as far as contact magazines are concerned, highlighted by the original three-judge appeals panel: A mature couple, "John Doe" and "Jane Doe," who produced sexually explicit content in their own home, would therefore be forced to keep 2257 records on themselves, label their photographs with their real names and address, and be open to inspection by the FBI for 20 hours per week for at least five and possibly seven years.
"The plain text and definitions of the terms used admit of no commercial limitation on who will be considered producers," wrote Senior Judge Cornelia G. Kennedy for that panel.
The en banc panel, however, ignored that troubling fact, preferring instead to accept representations from the government that such a couple would never face the statute's wrath - and made a point of noting that neither the Does nor anyone in their position had yet been charged under the law.
"The record not only presents a contextual vacuum; it also presents a law-enforcement vacuum, making this debate all the more abstract and all the more vulnerable to inaccurate rather than accurate judicial decision-making," Judge Sutton claimed. "The government has informed us that, during the twenty years that §2257 has been in existence, it has never been enforced in this setting. It has informed us that it has no intention of enforcing the law in this setting - as proved by the fact that the Attorney General, a party to this case and the sole defendant in it, has taken the position that the statute 'does not apply to images that an adult couple produces of its own intimate activity for the couple's private enjoyment at home'."
"And we do not mean to suggest that a couple potentially affected by this hypothetical application of the law could not bring a declaratory-judgment action or an as-applied challenge to the law today, whether in their own names or as an anonymous John and Jane Doe," Sutton continued. "But that does not mean litigation by proxy makes sense in this setting, one that has yet to come to pass, one that may never come to pass and one that presents three layers of abstraction: (1) no record of any kind about this form of middle-aged sexual expression; (2) no record of its prevalence; and (3) no idea how a government that for twenty years has not applied the law in this setting, that indeed disclaims the authority to apply the law in this setting, ultimately would choose to apply the law if it ever changed its mind. Overbreadth plays several essential roles in protecting free speech, but this simply is not one of them."
But the majority rested its denial of Connection's overbreadth claim on extremely shaky ground, according to Judge Kennedy, whose dissent ran nearly as long as the majority opinion - and was significantly meatier, in that she traced the progression of the majority's failure to find overbreadth from the individual claimants up to Justice Anthony Kennedy's dictum in Ashcroft v. Free Speech Coalition - and throws in the doctrine's chilling effect for good measure.
"Enforcement has never been the touchstone of the substantiality of overbreadth inquiry," she began her dissent, referring to the majority's final statement's regarding the Does. "A very purpose of the overbreadth doctrine is to invalidate those laws whose statutory language gives such sweep that law enforcement can selectively enforce the law on the basis of the speech's content... To uphold a law based on the statement of an Assistant United States Attorney in this case, while at the same time all but conceding that the law is unconstitutional as applied to private couples, and that the law's record-keeping application to private couples with its criminal penalty falls within the statute's text, is to eviscerate the purpose for overbreadth... Because federal criminal statutes outlast Attorneys General, the reach of the statute's text, not a promise from law enforcement nor a recently enacted regulation, is the proper focus of our inquiry. More than simply the imposition of criminal sanctions on protected speech, §2257 chills even those private couples who might otherwise engage in protected speech and follow its record-keeping requirements."
It is important to note that the majority gives short shrift to the plaintiffs' claims of privacy violation under the regulations.
"Connection argues that the record-keeping requirements place undue barriers on the advertisers' interests in engaging in anonymous speech," Judge Sutton wrote. "Yet Connection is not a particularly credible advocate for anonymous speech, as it does not permit advertisers to submit photos or other information without identifying who they are. Nothing in the statute, moreover, makes the required records available to the public. The advertisers must give the records only to Connection, to whom each advertiser already will have given material that most people would consider deeply personal - sexually explicit pictures of themselves with identifying names and addresses. Having entrusted Connection with these pictures and having already been required by Connection to disclose their identities, what individuals would shy away from producing verification of their ages as well? None, it seems to us, or at least none who would have a reasonable basis for doing so."
But Judge Kennedy sees the danger is this "good for the goose, good for the gander" type of argument.
"While the records required by §2257 will not necessarily be publicly available, the statute does provide for government access and does not provide for confidentiality," Judge Kennedy's dissent noted. "The Court in Watchtower Bible & Tract Society of New York [v. Village Of Stratton] also explicitly rejected the argument that the majority appears to make, which reasons that if individuals are willing to expose themselves in sexually explicit imagery, then they can be made to expose other identifying information. In Watchtower Bible & Tract Society of New York, petition circulators went door-to-door seeking signatures, and thus they revealed their physical identities. Yet the Court held that '[t]he fact that circulators revealed their physical identities did not foreclose our consideration of the circulators' interest in maintaining their anonymity.' ... This again draws attention to the historical protection of anonymity as against the government, not the general public, and therefore an individual may be willing to expose his or her physical presence in sexually explicit imagery or otherwise which acquaintances may recognize, and still retain an interest in not disclosing identifying information to the government."
Perhaps Judge Kennedy thought it would be gilding the lily to mention that the seminal works of American political dissent, the Federalist Papers, were all originally published anonymously as well. How much more might a sexual dissenter - a swinger - fear government reprisals - especially a government as hell-bent on sexual suppression as the Bush administration's? After all, as Judge Kennedy noted, "Because federal criminal statutes outlast Attorneys General, the reach of the statute's text, not a promise from law enforcement nor a recently enacted regulation, is the proper focus of our inquiry," and, "Anonymous speech is also an interest of private couples. The Supreme Court has held that 'an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.'"
Returning to the overbreadth argument, Judge Kennedy pressed her case, now extending the problem with the law to commercial content.
"The majority suggests that all commercial pornography falls within the statute's plainly legitimate sweep because commercial pornography is dominated by young-looking models which fall within the statute's plainly legitimate sweep," she wrote. "However, the majority does not have much confidence in this suggestion, as it only can say that commercial pornography 'is the setting in which it is easiest to accept the constitutionality of these proof-of-age requirements.' But Broadrick [v. Oklahoma] and our overbreadth case law instruct courts to look at the legitimate sweep of the statute which is 'plain,' not that which is easiest to accept. The majority all but concedes that the application of §2257 is 'problematic' with regard to sexually explicit images in which the actors and actresses are clearly middle-aged individuals. That acknowledgment in itself shows that the legitimacy of §2257 as applied to commercial pornography is not plain."
"No children are abused in the creation of commercial pornography with young-looking models," Judge Kennedy pointed out. "The majority distinguishes our case from that in Free Speech Coalition by referring to the level of scrutiny applied - that is, intermediate scrutiny here versus strict scrutiny in Free Speech Coalition, but that does not change the Court's concern with '[p]rotected speech . . . becom[ing] unprotected merely because it resembles' unprotected speech. ... The majority seems today to try to craft a law that applies to commercial sexually explicit imagery, which at the same time does not apply to private couples. In so doing, the majority attempts to both rule on overbreadth at the same time as it formulates a new constitutional rule with regard to the legality of a universal record-keeping requirement in the commercial production of sexually explicit imagery."
Judge Kennedy makes it clear that she understands the difference between child pornography, which is illegal in all circumstances, and commercial pornography with young-looking models, which is presumed to be protected speech and is of an entirely different character and distribution pattern than child porn.
"The government seeks to prevent child pornography, an important if not paramount governmental interest, but cannot do so by burdening speech of such importance and sweep, far removed from the purposes of the statute," she stated. "Indeed, overbreadth exists to cure statutory imprecision when the legislature has drafted a statute which by its text reaches expressive activity far afield from its valid exercise of its power... The majority clings to a statute that it admits is flawed, all but conceding that the statute is fatally flawed if applied, holding on to the representation that there will be no prosecutions in the feared circumstances. The uncontroverted illegality of the statute as a matter of law leads the majority to search out defects in the litigants' factual showings, namely those facts that exist out in the world, in an effort to defeat their proffered arguments, not the merits of their case. The Supreme Court has never done this."
Indeed, according to First Amendment attorney Lawrence Walters, the majority opinion turns the overbreadth question on its head. It reminded him of the final court challenge to the 1996 Communications Decency Act, where photographer Barbara Nitke raised the then-unique objection that by attempting to apply the Miller obscenity test to the Internet, Congress was attempting to create a conservative worldwide "community standard" for all online sexually explicit material.
"As far as the facial challenge, that obviously gave the majority some heartburn and they had to struggle with it because it's true that the statute can be read that way and should be read that way because it was written that way," Walters assessed. "And they didn't like it, and the best they could come up with was that, 'Well, that's not enough to render the statute unconstitutional because we don't have any record of this kind of application of the statute actually occurring.' That, to me, was a tremendous copout and we're seeing this more and more. Do you remember the Nitke decision on the community standard, challenging the CDA's application to obscenity? Where basically the Court was requiring some actual evidence of these hypothetical unconstitutional applications of the law in an overbreadth challenge? You know, that's never been the requirement. These are hypothetical applications; you don't have to go in and parade a bunch of witnesses to say 'this is happening; this is how often it happens.' Used to be, all you had to show was that there were potential applications of the law that could violate the Constitution and you determine whether that would be substantial. What the conservative judges are doing to try to take away our overbreadth challenges is to now impose some kind of evidentiary burden on challengers coming in, to show that the law is actually being applied this way, but that flies in the face of things like preenforcement challenges; we're allowed to challenge statutes before they're ever enforced against anybody on overbreadth grounds."
According to Judge Kennedy, when the courts see bad law being made, it is their duty, if they find it impossible to strike certain portions of the law to make it conform with constitutional requirements, to invalidate that law on its face and essentially say to the legislature, "Try again."
"I would hold that the statute is unconstitutional as applied to Connection and its advertisers for the simple, uncontroverted fact that the vast majority of swingers, Connection subscribers, and Connection advertisers are over the age of 21 if not middle-aged, and at the same time, §2257 requires universal age-verification and recordkeeping such that they must create at the time of production and maintain records for those of all ages," Judge Kennedy concluded. "None of the majority's arguments about the subjectivity of determining the ages of young-looking adults or the submission of body parts in lieu of a full-body photo with a face-shot changes that. It is up to the legislature to consider those factors in drawing a sufficiently narrowly-tailored statute... The statute as it is drawn burdens substantially more protected speech - that is, the speech of the vast majority of swingers, Connection subscribers, and Connection advertisers who are over the age of 21, if not middle-aged - than is necessary to advance the legislature's compelling interest of eliminating child pornography. And accordingly, I would hold the statute unconstitutional as applied to Connection and its advertisers as well."
Also on board with a well-written dissent was Judge Karen Nelson Moore, who as a panel member for the original appeals ruling had penned an excellent concurrence to that decision which focused mainly on the level of scrutiny that should be applied to any assessment of 2257. She reiterated some of that argument here.
"Although §2257 applies only to sexually explicit images, the majority contends that the law is content-neutral and should be evaluated pursuant to the intermediate-scrutiny standard," Judge Moore observed. "The majority asserts that a regulation of speech is content-neutral so long as the government was aiming at the 'secondary effects' of the speech, and cites several cases dealing with 'time, place, and manner regulations' that affect speech... Here, the line between the direct effects and the secondary effects of the speech is much blurrier than in these zoning cases. Unlike these time, place, and manner restrictions, the evil at which §2257 is aimed, child pornography, is a type of speech, albeit unprotected, that is a subset of the regulated speech, sexually explicit images. It is therefore impossible to separate the content-based aspect of the regulation from the justification, as the justification itself relates to an aspect of the speech: its sexually explicit nature. As explained in my concurrence in the panel opinion, §2257 is precisely the type of content-based restriction of speech to which we must apply strict scrutiny."
Of course, the adult industry has recognized since the beginning that the concept of regulating adult businesses because of their alleged "secondary effects" is bogus; that well-run businesses create fewer "secondary effects" than do fast-food restaurants and convenience stores, and that laws prohibiting many of the so-called "effects" already exist. Indeed, the whole "secondary effects" concept was created from whole cloth by the Burger court, in Renton v. Playtime Theatres, to justify cities' attempts to keep "nice people" from having to walk by adult businesses and possibly have their kids ask what was going on inside. Judge Moore is on solid ground in suggesting that 2257 should be assessed on the basis of strict scrutiny - that is, whether it accomplishes a compelling governmental interest, is narrowly tailored to achieve that goal, and is the least restrictive means of doing so - rather than intermediate scrutiny, which the majority here applies, meaning merely that the law implicates an important government interest and is substantially related to its accomplishment.
Judge Moore also dealt with the privacy violations inherent in 2257, as well as the individual plaintiffs' claims that 2257 requires them to give up their Fifth Amendment rights.
"[T]he majority vastly understates the difference between providing perfunctory contact information to a magazine to which one submits anonymous photos and providing government-issued photo identification which must be kept on file for government inspection and through which one can be identified by the government as a performer in sexually explicit images," noted Judge Moore, a Clinton appointee to the bench who is obviously well aware of the massive privacy invasions undertaken by the Bush administration, as well as its antipathy toward sexual speech. "Revealing one's sexual tendencies to the government is very different from revealing these tendencies to someone who has been chosen and pre-screened and is known to share these same tendencies. The majority's attempts to minimize §2257's burden on protected speech thus fail."
Larry Walters found that concept equally troubling.
"Merely because these so-called advertisers, these swingers are willing to provide some information, some financial information to Connection to place their ads doesn't mean they should be perfectly willing to subject themselves to government inspections five days a week and maintaining these records for years after they take their images off the site," he argued. "They're just two completely different categories of information and invasions of privacy, but the Court seems to say, 'Well, if they're willing to do one, then their anonymity claims and their demands for privacy are not well taken by the Court,' and I found that to be objectionable."
"Imposing this burden on Connection and its potential advertisers does not advance Congress's goal of ending child pornography," Judge Moore stated, commenting on the plaintiffs' as-applied challenge. "The evidence in the record indicates that the vast majority of swingers are middle-aged and accordingly not at risk of being mistaken for minors, and the record contains no indication of swingers engaging in sexual exploitation of minors. Accordingly, in the vast majority of instances, applying §2257's age-verification and record-keeping requirements to this population does not advance the government's interest in preventing child pornography, but instead operates to burden constitutionally protected speech without any corresponding benefit."
Finally, Judge Moore makes one of the most important observations in the entire record of 2257 litigation about the vast majority of those affected by the law - and it's right out of Free Speech's Supreme Court case:
"The Supreme Court's opinion in Ashcroft v. Free Speech Coalition bolsters this conclusion. There, the Court struck down a statute 'extend[ing] the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children.' Although the Court there struck down the law on its face for overbreadth, the Court's reasoning is instructive. Key to the Court's conclusion was the fact that the speech at issue 'record[ed] no crime and create[d] no victims by its production' and consequently was protected speech. The government nonetheless sought to justify its ban on this protected speech as a means to ban unprotected speech. The Supreme Court noted that such an 'analysis turns the First Amendment upside down.'"
"Record[ed] no crime and create[d] no victims" - how much simpler can the "problem" which the incredibly invasive and burdensome requirements of 2257 are supposed to solve be described?
"Read the dissents!" exclaimed J. Michael Murray, who argued the case for the plaintiffs. "The dissents are brilliant! They're well reasoned, they're brilliant, they're correct and they're going to serve as a good foundation for getting the Supreme Court to review the case. The majority opinion is really very superficial, in my view, and doesn't really come to grips with the real serious, difficult issues in the case, and I think the dissenting opinions convincingly demonstrate that deficiency."
"Rarely have I seen such a politically oriented opinion as the en banc decision," added adult entertainment attorney Greg Piccionelli. "It was clearly outcome-oriented, and the pretzel logic that the opinion uses to get to its conclusion does not mask the fact that this simply had to be an outcome that was predetermined because of the political predispositions of the justices involved, and it's a sad day for the First Amendment that we have judicial decisions that come down this way. Judge Moore's argument in the first panel decision was excellent: 2257 is simply unconstitutional; that's it. Moore's argument set it forth for all the right reasons, got it exactly correct, and this opinion is unfortunately an abomination, but totally not unexpected. Most of the First Amendment attorneys expected exactly this outcome, sadly."
All of the participating Sixth Circuit judges from the Carter and most from the Clinton era dissented from the majority, while just one of the ten Reagan, Bush I and Bush II appointees joined the dissenters. The final count was 11-6.
As might be expected, religious conservative groups have lauded the decision.
"Children should not be fodder for the profits and perverse desires of pornographers," said Alan Sears, former executive director of the Meese Commission and founder of the conservative Alliance Defense Fund, when the en banc opinion was announced. "Today's ruling once again affirms that no conflict exists between the protections of the First Amendment and this law, which simply exists to protect our nation's most vulnerable citizens: Our children."
The adult industry, however, appears ready to redouble its efforts in the wake of the setback.
Free Speech Coalition announced that, "We are in the process of selecting attorneys for our next challenge to 2257 with litigation soon to follow."
"This does not in any way deter us from proceeding with our intended challenges and/or Justice Department negotiations regarding 2257," said FSC board chairman Jeffrey Douglas. "It makes our battle a little more difficult but this was argued Sept. 10, more than two months before the new regs were announced. Although the majority opinion does reference the new regs, they were never argued and never at the heart of things nor were the constitutional issues raised by some of the Adam Walsh amendments before the Court either, so we still have several challenges that were not raised in Connection, appropriately, and so I am still optimistic."
Murray was even more blunt.
"Will we appeal? Absolutely! I mean, it's been 14 years; we're never going to give up."