Now that the far right has managed to pack the federal courts, it is becoming more and more rare to see a good old-fashioned speech protective case come down from a higher court. The Sixth Circuit recently reaffirmed that the First Amendment does, indeed, mean something when it struck down 18 U.S.C. § 2257 – the adult media record keeping law that has plagued the industry for more than a decade. See Connection Distributing v. Keisler, 505 F.3d 545 (6th Cir. 2007).
The Background – The War on Sex
Social conservatives on both the right and left take great delight in attempting to carve out an erotic speech exception to the First Amendment. The far right thinks that their imaginary friend knows what is best for us – and that is that we shouldn’t have access to erotic materials. The far left is just as bad – believing that they know how to bring us to utopia, and banning erotica is a cobblestone in that road. Neither have any respect for the First Amendment. (For a great discussion of the issue of erophobia, see Dr. Marty Klein, America’s War on Sex).
For the most part, these efforts have not been successful. Outright bans on adult entertainment are unconstitutional. Attempts by misguided left-leaning paternalists to create private causes of action engineered to drive erotica out of business have been no more successful. See, e.g., American Booksellers Ass’n. v. Hudnut, 771 F.2d 323 (7th Cir. 1985).
However, when Congress passed 18 U.S.C. § 2257, it inaugurated a new, creative, and somewhat scary “third front” in the war on sexual expression. Forged in the fires of the Meese Commission, Section 2257 attempted to drive adult entertainment out of business by simply making it too burdensome to produce it.
What is Section 2257?
Section 2257 is a law that requires any “producer” of “actual sexually explicit” content to keep age verification records pertaining to anyone appearing in that content. Explained that simply, Section 2257 seems quite reasonable. If you are going to produce pornography, make sure that the talent is over the age of 18, and be able to prove it.
If only it were that simple.
It isn’t just about pornography
First, lets take a look at what kind of images are regulated by Section 2257. In order to fall under Section 2257, the images must be of “actual sexually explicit conduct.” (hereinafter, ASEC). What does ASEC include? As articulated by the Sixth Circuit, ASEC includes: “sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(i) (2006). It also includes images of bestiality, masturbation, sadistic or masochistic abuse, and “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(ii)-(v) (2006).
See? Already things are getting a little muddy. Any reasonable person would have to agree that “genital-genital intercourse” is a relatively clear term. But, what does “sadistic or masochistic abuse” mean? The law contains virtually no guidance in that department. A photograph of dripping candle wax on someone’s leg could qualify as “sadistic or masochistic abuse,” as could any number of other activities that don’t come close to any definition of “pornography.” Remember, the supposed goal of this statute is to keep children out of pornography..
How about “lascivious exhibition of the genitals or pubic area of any person”??? Go ahead, try to actually define those terms. I’ll wait….
Who is to determine whether the “pubic area” of a person is in a state of “lascivious exhibition” in any given photograph or video? Under this statute, most Victoria’s Secret catalogs, Sports Illustrated swimsuit issues, and any number of seemingly “innocent” images could be swept up in the anti-porn dragnet. That would be just fine with the erophobes. It is not just fine as far as the Constitution is concerned.
Now that we have figured out what kind of images or depictions trigger responsibility to keep Section 2257 records, let’s look at what that responsibility means:
Under § 2257, a producer of sexually explicit images must inspect the talent’s government-issued photo identification to ascertain her (or his) date of birth. See 18 U.S.C. § 2257(b)(1) (2006); 28 C.F.R.§ 75.2(a)(1). Not such a big deal… but the government couldn’t be happy with that.
Section 2257 also requires that the producer copy the ID and keep it in a file. The producer must also record any stage names or aliases the talent has used in the past, and record and index all places where the image is published and keep all that information in a file where it is not co-mingled with any other records of any kind. See 18 U.S.C. § 2257(b) (2006); 28 C.F.R. § 75.2(a), (d), (e). Also, the way the regulations are written, it makes the adult entertainment industry into the one industry that is either protected from outsourcing, or at the least, the entertainment equivalent of the minuteman brigade. (Link)
Accordingly, if a producer of First Amendment protected adult material puts anything in an entertainer’s file that is not specifically required by 2257, it could mean that the producer is off to jail.
This isn’t the worst of it…
Fourth Amendment? What Fourth Amendment?
Once the producer creates these records, indexes them, and cross-references them, that isn’t the end of the line. The producer must then list a “2257 statement,” listing the date of production, and an address where the records may be inspected during regular business hours – and those hours must be at least 20 hours per week. 18 U.S.C. § 2257(e) (2006); 28 C.F.R. § 75.6(a), (b). There are more technical requirements as well, including that the statement must be in 12 point font, printed in a color that contrasts with the background, and must be prominently displayed. 28 C.F.R. § 75.6(e) (2006).
The Attorney General, or any designated agent may now come knock on the producer’s door for a “2257 inspection.” By law, they are not allowed to give any advance notice. No warrant. No probable cause. No reasonable suspicion. Once every four months, for no reason at all, FBI agents get to show up at the producer’s door for an inspection – and they can come more often if there is a reasonable suspicion that a violation has occurred. 18 U.S.C. § 2257(c) (2006); 28 C.F.R. § 75.5(b), (c), (d) (2006).
If you blow the requirements – five years in jail. That’s not for having underage performers, mind you. If your paperwork is not in order you are staring down the barrel of a five year jail sentence.
The Connections Case
Connection publishing produces a handful of swingers’ magazines that include personals for swinging couples to meet like minded individuals. Its members prefer, naturally, to include sexually explicit (as that term is defined) photographs in their personal ads. Under Section 2257, that would require all of these couples and individuals to not only keep and maintain their records, but to disclose their home addresses and to allow FBI agents to raid their home every four months. Not very American, eh?
Analyzing the statute itself, the Sixth Circuit found that Congress had gone way beyond logic in enacting such a broad record keeping requirement.
The breadth of the recordkeeping provisions here cannot be narrowed. By its clear, unambiguous terms, the statute applies to any “producer” of photographs depicting actual sexually explicit conduct, 18 U.S.C. § 2257(a), and “produces” is defined to include anyone who creates the visual representation, for instance a photographer or videographer, as well as anyone who subsequently publishes the image, id. § 2257(h)(2). This means that couples submitting photographs to Connections, or any couples who take photographs for their own personal use, must create the required records upon creation of the image because either one has or both have “produced”
regulated images. The statute by its plain terms makes no exception for photographs taken without a commercial purpose, for photographs intended to never be transferred, or for photographs taken with any other motivation. If the photograph depicts actual sexually explicit conduct, a record must be kept by the person creating the image. Additionally, the disclosure statement regarding where the records are kept must be affixed to every image created, regardless of whether a person plans on selling or otherwise transferring the image. Id. § 2257(e)(1), (f)(3). It is a separate violation of the statute if a person, including the creator, wishes to sell or otherwise transfer a photograph without a disclosure statement and either does so or offers to do so. Id. § 2257(f)(4).
This reach is extremely broad, and the most common sense limitation, for which the statute and regulations provide some support, would be to limit the statute’s reach to photographs taken for a commercial purpose, that is, photographs taken for the purpose of sale. While there are some hints Congress may have intended such a limitation, these hints are insufficient to contradict the plain language of the statute.
The plain text and definitions of the terms used admit of no commercial limitation on who will be considered producers. While the statute does say that records should be kept at a producer’s “business premises,” it follows up with allowing records to be kept “at such other places as the Attorney General may by regulation prescribe.” 18 U.S.C. § 2257(c). The word “produces” merely means “creates” according to the statute, and a person can create an image for noncommercial motivations just as a person can create an image for commercial reasons. See id. § 2257(h)(2)(A)(i). The inspection regulation reinforces the notion that a person does not have to be in the business of producing such images to be covered by the statute. While the regulation provides that inspections will occur during “normal business hours,” it also deals with those producers who “do not maintain at least 20 normal business hours per week.” 28 C.F.R. § 75.5(c)(1).
Additionally, and perhaps most persuasively, Congress knew how to limit the statute’s reach to the commercial context because it chose to require only commercially-motivated publishers, termed secondary producers by the regulations, to keep records. See 18 U.S.C. § 2257(h)(2)(A)(ii) (2006). Congress did not, however, include a requirement that the creators of the images, termed primary producers by the regulations, intend to commercially distribute the images before being subject to the recordkeeping requirements. See id. § 2257(h)(2)(A)(i).
The government pointed to the fact that §2257 was intended to prevent child abuse and child pornography. Again, laudable goals. However, how would forcing 40 year old swingers, and everyone involved in “producing” photographs of them, to keep and maintain records achieve that goal?
The case continues to gut the law by recognizing that §2257 infringes on First Amendment protected expression:
The government argues that the recordkeeping requirements are simply aimed at conduct, because it seeks to reduce child abuse by its regulation. Indeed, the Supreme Court recognized in Ferber that the very reason child pornography can be regulated is because it is so closely tied to the conduct, child abuse, which the government was trying to stamp out. Ferber, 458 U.S. at 761. The D.C. Circuit accepted the government’s argument, and therefore evaluated the statute at issue under the O’Brien standard. Am. Library Ass’n v. Reno, 33 F.3d 78, 87 (D.C. Cir. 1994).
This argument is unpersuasive. While the government is indeed aiming at conduct, child abuse, it is regulating protected speech, sexually explicit images of adults, to get at that conduct. To the extent the government is claiming that a law is considered a conduct regulation as long as the government claims an interest in conduct and not speech, the Supreme Court has rejected that argument. See, e.g., Schneider v. State, 308 U.S. 147, 150 (1939) (holding that the government cannot ban handbills, speech, to vindicate its interest in preventing littering, conduct). The expression at issue here is not conduct, it is speech. Images, including photographs, are protected by the First Amendment as speech as much as “words in books” and “oral utterance[s].” Kaplan v. California, 413 U.S. 147, 119-20 (1973). Indeed, visual images are “a primitive but effective way of communicating ideas . . . a short cut from mind to mind.” W. Va. State Bd. of Ed. v. Barnette,319 U.S. 624, 632 (1943). Even if the government tried to characterize the regulation as aimed at the conduct of pressing the button on a camera or other recording device to create images, that conduct would be so closely tied to the speech produced, and the government’s interest here is in the speech produced, that it would be better considered to be a speech regulation.
Child abuse, the actual conduct in which the government is interested, is already illegal. Child pornography, while speech, can be considered more like conduct because the conduct depicted is illegal, and if that illegality did not occur, no images of child pornography would be created.
[The court then discussed the definition of child pornography and why it is not protected by the First Amendment.]
This analysis of child pornography, that it is closer to conduct and not speech, does not control when determining whether images of adult sexual conduct are speech or conduct. Adult sexual conduct is not illegal and it is in fact constitutionally protected. See, e.g., Lawrence v. Texas,539 U.S. 558 (2003).
The Sixth Circuit identified that if Section 2257 remained intact, it would bring about absurd legal realities.
[A] married couple who videotape or photograph themselves in the bedroom engaging in sexually explicit conduct would be required to keep records, affix disclosure statements to the images, and hold their home open to government agents for records inspections. This reach sweeps in a lot of protected speech. This includes images which amount to obscenity but are kept in the privacy of one’s home and are therefore constitutionally protected speech. Stanley v. Georgia, 394 U.S. 557, 564-68 (1969).
Beyond that, the record keeping and disclosure requirements stepped on an individual’s right to anonymous speech:
[T]he First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”). [Section 2257] statute not only regulates a person’s right to take sexually explicit photographs, but it also requires that person to identify him or herself as the photographer as well as identify the individual depicted. While the individual depicted is shown in the photograph, that person still has a First Amendment right to not provide his or her name and therefore retain a certain level of anonymity. See Watchtower Bible & Tract Soc’y of N.Y., Inc., 536 U.S. at 167 (“The fact that circulators revealed their physical identities did not foreclose our consideration of the circulators’ interest in maintaining their anonymity [in Buckley v. Valeo, 424 U.S. 1 (1976)].”). It is clear that this statute covers quite a bit of protected speech.
The Sixth Circuit correctly stated that the government may ban child pornography. I know that there are those with First Amendment minds greater than mine who disagree, but I am prepared to allow a line to be drawn that prohibits child porn, yet goes no further. The Sixth appears to agree with my line-drawing exercise, and held that while prevention of child porn is within Section 2257’s “legitimate sweep,” Applying Section 2257 to “all depictions of actual sexually explicit conduct between two adults, however, is not clearly within the statute’s plainly legitimate sweep.”
This statute covers images of actual sexually explicit conduct regardless of the obvious age of those depicted and regardless of whether or not the photographer actually knows the age of the person being photographed, for instance if the person being photographed is the photographer’s significant other. These images are not within the “legitimate sweep” of the statute because it does not vindicate the government’s interest to cover them.
Even the government’s expert witness testified that he did not need to check an ID to determine the adult or minor status of the “vast majority” of individuals in the Connection’s magazines.
The Sixth Calls Section 2257 “Overly Burdensome” O RLY?
The burden on protected speech is also part of the inquiry into a statute’s overbreadth. Ferber, 458 U.S. at 773 (“[T]he penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial.”); see also Taxpayers for Vincent, 466 U.S. at 799 (“In order to decide whether the overbreadth exception is applicable in a particular case, we have weighed the likelihood that the statute’s very existence will inhibit free expression.”). This recordkeeping statute imposes multiple burdens. It bans anonymous images of actual sexually explicit conduct, and if records are not kept (if anonymity is not sacrificed), the person is guilty of a felony punishable by up to five years in prison and fines. 18 U.S.C. § 2257(a), (b), (f). The statute also requires all producers to keep records on each image and affix disclosure statements to the images. Id. § 2257(b), (e). While this burden may not be that large for a commercial entity, it is likely to be more burdensome for those motivated by noncommercial purposes. Indeed, the Supreme Court has recognized that imposing regulations on noncommercial sexually explicit speech is a burden that may be too great and consequently chill speech. See Am. Civil Liberties Union, 521 U.S. at 865. The statute here effectively bans creation of sexually explicit images unless such records are kept. The statute additionally burdens those that wish to publish photographs, as they are disallowed from doing so unless such records are kept, even if they did not take the photograph and have no other way to track the performers down to create the records. Id. § 2257(a), (h)(2)(A). Lastly, the statute burdens speech because it not only requires the person to keep records, it also allows the government to enter the premises where the records are kept at least once every four months, and perhaps more often, to inspect such records. Id. § 2257(c); 28 C.F.R. § 75.5 (2006).
These burdens lead to significant chilling effects. See Hicks, 539 U.S. at 119 (“We have provided this expansive remedy[, the overbreadth doctrine,] out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.”).
The Court determined that in enacting § 2257, the government drew an over-inclusive line by including all sexually explicit photographs under the statute without regard to whether they were taken for commercial purposes or whether the subject of the photograph clearly appears to be older than 18 years of age.
We do not belittle the despicability of child pornography, and we appreciate the difficulties faced by the government. There are a myriad of limitations available, however, that would reduce the breadth of the recordkeeping requirements and would more narrowly focus on the government’s interest and therefore remove some of the protected speech from the statute’s coverage. Such limitations have been suggested by witnesses who testified before Congress and by the plaintiffs here. “Congress may pass valid laws to protect children from abuse, and it has. The prospect of crime, however, by itself does not justify laws suppressing protected speech.” Free Speech Coal., 535 U.S. at 245 (citation omitted).
Indeed, here the government is burdening speech that, aside from being photographs of sexually explicit conduct, in no way resembles child pornography because the individual depicted may obviously be thirty or forty or fifty or sixty years old. “The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Id. The recordkeeping requirements of 18 U.S.C. § 2257 are, therefore, facially unconstitutional for overbreadth.
Ostensibly, Section 2257 was passed for a noble purpose – to prevent the exploitation of children. Even I, a First Amendment absolutist, agree that actual child pornography is outside the protection granted by the First Amendment. You can not create child porn without harming a child, therefore I can agree that it can be banned without running afoul of that great protector of our cherished freedoms. However, even a “moron in a hurry” can tell by reading Section 2257 and its implementing regulations that Congress and the Department of Justice had another mission in mind – to burden erotic speech with enough of a chilling effect to satisfy the censorship minded erophobes. If that wasn’t the intent, it was a masterful blunder.
In some respects, § 2257 makes sense – any law that seeks to stop child pornography should be reviewed with deference. The thing is, any porn producers with any intelligence at all already did what Section 2257 reasonably required. Child porn violations are serious business, and anyone who made commercial pornography without keeping a copy of the performer’s ID was asking for trouble. Even pre-2257, it was a good idea, because if the FBI showed up on your door asking about a “certain girl” and her age, you could pull your records and show that she, at least, had an ID that said she was 25.
Furthermore, no matter what the radical religious right or the shrill psychotic left want you to believe, no producers of adult entertainment want underage performers in their films. I have had the opportunity to know hundreds of producers in my career, and not one of them would take 17 year old talent – even if it were legal. Why? First of all, most of them are very protective of kids. You would be surprised how decent the adult media community really is. Second, underage performers just aren’t profitable. If a site has an underage performer on it, 99.999% of the market won’t want that URL in its browsing history.
Fortunately, the Sixth Circuit Court of Appeals saw through Congress’ censorial intent (or at least saw the censorial effect) and ruled that Section 2257 is unconstitutional. Of course, this case is only binding in the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee), but it is still quite persuasive authority in the rest of the country. I find it unlikely that the D.O.J. will consider the statute to be enforceable anywhere. (That said, if I were in the adult entertainment business, I would still comply with Section 2257 — even in the Sixth Circuit — until something definitive came out of Washington).
I eagerly await how the idiots and censors alike will form a Congressional alliance to pass their next ill-considered anti-First Amendment legislation – or perhaps (a man can dream) they have finally learned their lesson.