PHILADELPHIA, PA—Late last week, appellants' attorneys J. Michael Murray and Lorraine Baumgardner filed their Reply Brief with the Third Circuit Court of Appeals, responding to the government's Appellee's Brief filed in late June in the case of Free Speech Coalition, et al v. Attorney General of the United States—and its arguments are virtually irrefutable.
The appellants begin by citing one of the U.S. Supreme Court's most recent decisions, McCullen v. Coakley, which struck down a 35-foot anti-abortion "protest limit" around women's clinics in Massachusetts—and which was, in essence, a free speech case, some of whose language applies directly to the appellants' desire to strike down the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A (hereafter "§2257").
The attorneys first note, however, that under a ruling by the Third Circuit in a 2011 case, that court itself "stressed that in cases raising First Amendment issues, appellate courts have an obligation to conduct '[i]ndependent fact review' to assure that the trial court’s judgment 'does not constitute a forbidden intrusion on the field of free expression... and to provide appellate courts with greater control over the case-by-case elaboration of First Amendment principles.'" Such a review by the appellate judges is vital in this case, since the trial court, U.S. District Judge Michael Baylson, gave short shrift to the testimony of both plaintiffs and plaintiffs' experts in ruling that the §2257 laws served an important governmental purpose and were the least invasive method of doing so.
But the appellants' opening salvo is all about the McCullen case, noting first of all that while the high court had determined that Massachusetts' "buffer zone" law was "content-neutral," as the Third Circuit had done in this case, the law must nonetheless by "narrowly tailored to serve a significant government interest," which the majority in McCullen found "that 'by demanding a close fit between ends and means, the tailoring requirement prevents the government from too readily "sacrific[ing] speech for efficiency"' and stressed that 'mere convenience' is not an acceptable justification for a law burdening speech."
The problem for the government is, "efficiency" and "mere convenience" are exactly its rationale for upholding §2257—and according to appellees had "too readily ... foregone options that could serve its interests just as well without substantially burdening" speech," as the Supreme Court found that Massachusetts lawmakers had done with the buffer zones.
In their brief, Murray and Baumgardner point to the testimony of attorney and Free Speech Board Chair Jeffrey Douglas, who described in minute detail all of the requirements an adult producer, distributor, retailer, photographer or even common citizen must adhere to in order to film or otherwise create an artform that depicts actual human beings engaged in actual sexually explicit conduct. Some of those include making sure all 2257 documents created by the producers/artists and the government-issued photo IDs of the participants are properly filed and alphabetized and "in perfect order" in case government inspectors show up at their door, unannounced, during the minimum of 20 hours per week that such producer/artist must make such records available. Douglas also noted the incredible burden imposed on so-called "secondary producers" who, although they almost never have personal contact with the persons depicted in the movies or artworks, must keep the same records even if they, for example, post box covers of the movies they sell on the internet—and be available the same 20 hours per week for inspections—even though all of those records must be obtained from the producers themselves rather than from the performers/artistic subjects.
"Any misstep in compliance with these requirements is not punished by a simple administrative penalty as under other regulatory recordkeeping schemes, but by a potential prison term of up to five years," the brief notes.
The appellants go on to recount the testimony of Sinclair Institute's Dian Wilson and actress Nina Hartley about the costs associated with either maintaining those records themselves or hiring a third party to do so, but note that "While the regulations are burdensome for larger commercial producers, they are a complete nightmare for one and two-person businesses," citing the testimony of Eugene Mopsik, Executive Director of the American Society of Media Photographers, who not only said that such recordkeeping would be "impossible" for his organization's hundreds of professional photographers, but the requirement that a label be affixed to each photograph listing the location of the photo ID and other records, and the name of the person to be available 20 hours per week in case of inspection would be equally unworkable.
The brief goes on to list the devastating effects that §2257 would have or has had on several of the other appellants/plaintiffs, including the 1,800 images of vaginas that Betty Dodson and Carlin Ross had to remove from their sex education website; the self-censorship practiced by photographer David Levingston, "appropriationist artist" (collagist) Carol Queen, and website owner Tom Hymes; the inability of David Steinberg to distribute a Norwegian fine art magazine in the U.S.; and photographer Barbara Alper to publish a book of people having anonymous sex on Fire Island, not to mention a sexually explicit book of images that predate the §2257 statutes.
The brief then tackles those options the government could have used—or is already using—as a substitute for §2257, most notably the "numerous state and federal laws imposing 'substantial ... criminal penalties for creating and distributing child pornography'," which the brief later notes allowed the government to prosecute 4,000 child pornographers and kiddie porn possessors between 2002 and 2012—while during the same period, the DOJ prosecuted just nine people under §2257, most of whom were not adult movie producers, and no prosecutions at all under §2257A.
Incidentally, the brief also suggests that allowing all adult movie and content producers to have the same "bypass" of §2257 that the law allows mainstream producers to use—writing a letter to the Attorney General assuring him/her that the production company keeps identification and tax records in the normal course of its business—would also be a good substitute for §2257.
Finally, the brief suggests that the same laws that require vendors of alcohol and tobacco to check the IDs of any purchasers who appear to be under ages 25 or 26 would be another viable work-around that would serve the government purposes equally well.
"The Government, nonetheless, insists a universal age verification procedure enforced by criminal sanction is the only effective means of assuring that minors do not appear in commercially produced sexually explicit expression," the brief continues. "In making that argument, the Government does not contend there is a 'widespread' problem with underage performers appearing in commercial adult material. For good reason. The evidence demonstrated that the appearance of minors in commercially produced adult materials is nearly non-existent. Both Jeffrey Douglas, who has represented clients in the adult industry since 1982, and [Nina Hartley], who has performed in adult films since the early 1980s, testified there have been only a handful of instances in which a minor has appeared in an adult film. In each instance, the minor had been able to appear in the production, not because the producer had failed to obtain photo identification, but because the minor had duped the producer by using fraudulent identification." [Emphasis added; citations removed here and below]
As AVN has previously pointed out, if a producer is provided with an authentic-looking government-issued photo ID for an underage actress, that producer cannot be arrested for a §2257 violation even if he/she uses that underage actress in a movie or other content, as long as he has kept a copy of the ID in the proper folder in the company's records. The producer can, of course, be prosecuted for child pornography in such an instance.
The brief then spends several pages dealing with the question of how much "teen porn" is out there, noting that Dr. Gail Dines testified that "only between one-fourth and one-third of commercially produced sexual expression depicted adult performers who are youthful-looking enough to be confused as minors," which the brief goes on to note, "leaving the remaining two-thirds of commercially produced sexually explicit expression unnecessarily burdened by the statutes.
"Of course, the evidence also demonstrated that commercial producers of sexually explicit expression—adult film makers and professional photographers alike—do not rely on 'visual inspection alone' to determine whether a performer or model is an adult," the brief continues. "It has been a longstanding practice—well before the enactment of 18 U.S.C. §2257—to check identification documents to assure that their performers or models are adults.
"That leaves the Government with the same type of argument made by Massachusetts in McCullen, in support of its law's fixed buffer zones: the buffer zones would make law enforcement's job much easier. Similarly, the Government here argues that by 'eliminating subjective disputes' about a performer's age, the statutes would make law enforcement's job easier."
Or as the Supreme Court put it in McCullen, "To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency." (That's a line that First Amendment fans will probably see quoted nearly as often as Justice Kennedy's dicta in Free Speech Coalition v. Reno.)
The appellees go on to note that, leaving aside adult movies and explicit internet sex scenes, "Depiction after depiction [of plaintiffs' images published on the internet] features mature adults who could not reasonably be confused as minors. Between 63 percent and 90 percent of the persons depicted in actual sexual conduct in Plaintiffs’ expression are at least 25 years old–with many of them, much older. Plaintiffs also submitted a 500-page exhibit that included examples of artistic expression subject to the statutes, depicting obviously mature adults... Additionally, Plaintiffs presented evidence regarding the production of sexual imagery by married couples–in their own bedrooms or using available technology to “keep the spark going” in long distance relationships. They also produced evidence of the large body of sexually explicit photos and videos shared between adults on social networks and adult dating websites... Finally, Plaintiffs produced articles, surveys, and other documentation buttressing their claim that producing explicit photos and videos plays a large role in the private sex lives of ordinary American adults."
But, the brief notes, rather than dealing with this enormous amount of evidence showing that sexually explicit images created by adults for adults on websites, in sexts and on Skype, the government has instead attacked the experts—notably Drs. Drouin and Zimmerman—who testified about the ubiquity of such images, usually focusing on their methodology, which plaintiffs content is perfectly sound scientifically.
Murray and Baumgardner then reference the Supreme Court's decision in U.S. v. Stevens, which dealt with videos depicting dog-fighting, noting that the high court struck down the law prohibiting such videos because it was written so broadly as to prohibit everything from hunting magazines to bullfight videos.
"Nowhere in Stevens did the Court suggest, as the Government argues here, that the existence of these sizeable hunting magazine and video markets demonstrated that the law had not 'effectively ... chilled' expression, and therefore, warranted upholding it," the brief argues. "To the contrary, the Court reached the opposite conclusion and determined the statute’s application to this large body of expression rendered it unconstitutionally overbroad, and struck it down."
The brief then tears into the government's argument that the warrantless searches of the 29 companies that had their records inspected by the FBI in the mid-'00s were necessary to prevent child porn from being filmed and released, but that the appeals court shouldn't bother with that section of the statute because the FBI had disbanded its inspection team and was unlikely to restart it.
"Title 18 U.S.C. §§2257(c), 2257A(c), require Plaintiffs to maintain their records and make them available to the Attorney General for inspection; it is a violation of the statutes, punishable by term of imprisonment, to refuse to do so," the brief notes. "Plaintiffs have no choice but to comply with these provisions—regardless of the Government’s past, current, or future intention with respect to an inspection program—or face the risk of criminal prosecution... Significantly, the Government has, at no point, represented Plaintiffs no longer must maintain the records and be prepared to make them available for inspection by the Government. The statutes and regulations continue to impose ongoing obligations on them."
To bolster that argument, appellees refer to another recent Supreme Court case: Susan B. Anthony List v. Driehaus, which gave the petitioner leave to continue to challenge Ohio's law against lying in political campaign ads even though Driehaus himself had withdrawn its suit against the List—a situation that echoes the government's argument here that since it no longer has an inspection force empaneled, plaintiffs have nothing to worry about regarding possible future inspection regimes.
The final section of the brief deals with the government's argument that the warrantless searches are justified because the adult industry is allegedly "a highly regulated industry." Murray and Baumgardner, however, cite a 1978 case, Marshall v. Barlow's Inc., which destroys the government's claim.
"It [Marshall] stressed that designation of an industry as one that is 'closely' or 'pervasively' regulated for purposes of allowing warrantless searches is reserved for those having a 'history of government oversight' and that have been 'long subject to close supervision and inspection'," the appellees wrote. "It rebuffed the Government’s contention that the Occupational Safety and Health Act’s general regulation of working conditions constituted pervasive and close regulation such that businesses subject to its provisions had a diminished expectation of privacy, permitting warrantless searches of their premises. The Court noted that following the Government’s logic, warrantless searches would become the rule, rather than the exception—a result inconsistent with its precedent."
The brief also refers to New York v. Burger, which "likewise made clear the administrative search exception was limited to businesses that are 'pervasively regulated'—not because they have to comply with the general laws as all businesses do, but because they are subject to pervasive governmental regulations imposing specific requirements on the industry in which they operate, which has sufficiently diminished their expectation of privacy." And if there's one thing adult producers know, it's that the government has rarely even acknowledged the existence of the adult entertainment industry, much less "imposed specific requirements" on it.
In all, the appellees' brief is well-thought-out and makes the important point that §2257 does absolutely nothing to prevent underage would-be performers with realistic ID documents from entering the adult industry—and the fact that only five or six of them have done so since 1985, when Traci Lords was discovered to have been illegally performing, speaks well of both the intent and efficacy of the current vetting system used by adult industry members countrywide, if not worldwide.
The brief also marks the end of the documentation needed for the Third Circuit to consider whether to uphold, modify or simply overrule Judge Baylson's ruling in the case—but it's likely that oral argument before the appeals judges will not occur until later in the fall, with a decision probably coming sometime early next year. And then, no matter what that decision is, the likely next step will be for the losing party to appeal the decision to the U.S. Supreme Court—assuming that the adult industry shows the will and the pocketbook to make that happen.
The Appellees' Reply Brief can be found here.