Has the Sixth Circuit Declared Jihad on the First Amendment?

by Jason Fischer

Twice in two weeks, the Sixth Circuit has handed down decisions that are targeted at burdening the adult entertainment industry. As we pointed out in an earlier post and as Professor Salkin explains, the Sixth upheld a questionable Tennessee regulation that creates special licensing requirements for “sexually-oriented businesses.” They also did a number on their previous ruling concerning Section 2257.

If you are an avid reader of the Legal Satyricon, then you are familiar with the infamous little piece of federal legislation which can be found at Title 18, Section 2257 of the United States Code. If not, you can find a little light reading on the subject here and here.

Section 2257 lays out the record-keeping requirements that any producer of sexually explicit images or video must follow, in order to verify that none of the participants is underage. Sounds reasonable, right? Gotta make sure that no one is making child pornography, right? Fair enough, but that isn’t what this particular piece of legislation is doing. It’s suppressing other forms of expression that have nothing to do with underage performers.

As written, Section 2257 requires anyone, who takes dirty pictures or films a naughty movie, must keep special records that show the identity and age of all participants. “Anyone” includes you and your spouse – no matter how old you both are, even if you never plan on showing your kink materials to anyone else. Section 2257 also requires that you and your spouse attach a notice to all of your dirty pictures and naughty movies, which indicates where those records can be found. If a member of the law enforcement community comes to that place, where those records are to be kept, the records must be provided upon request – no warrant required. Failure to do any of the foregoing will result in criminal liability.

It doesn’t take a hard-core civil libertarian to see the issues with a statute that makes punishable, by up to five years in federal prison, constitutionally protected conduct which was perfectly legal before the statute was enacted.

Recognizing these problems with the law, Connection Distributing Co., a publisher of a swingers’ magazines, filed an action in federal court, seeking to invalidate the statute. Late in 2007, after fighting the legal battle for more than ten years, Connection received a victory when the Sixth Circuit Court of Appeals ruled that Section 2257 was unconstitutional. For an in-depth discussion of that ruling, along with plenty of analysis of the First Amendment problems with the law, you can read up on it here.

This would have been the end of the matter, except that the powers that be determined that the issue was too important to be decided by a three-judge panel. As a result, the case was reviewed by seventeen judges, sitting en banc, and that panel decided to reverse the original holding. The court’s full opinion can be found here, but below are the high points:

Our government cannot enact laws that regulate speech based on its content – that would be censorship. Connection argued that Section 2257 was content-based regulation, which violates the First Amendment, because it only applies to certain kinds of images. In simple terms, Section 2257 burdens pictures that would be found in a photo-illustrated Karma Sutra, but not those found in a coffee table book about kittens. However, according to the court, it’s okay to ban speech, as long as the motives for doing so are not based on the content. The court reasons that “[s]o long . . . as the law addresses the collateral or ‘secondary effects’ of the expression, not the effect the expression itself will have on others, it will be treated as content neutral.”

“[T]he law [does not] implicate the central risk of a content-based regulation of speech: that the government has impermissibly interfered with the free exchange of ideas by imposing trade barriers on certain viewpoints but not on others. . . . No doubt, § 2257 favors a particular viewpoint on this issue: Congress is against child pornography and is using this law to prevent it. Although that kind of viewpoint discrimination normally would be fatal to a law, that is not true here because the Constitution allows the government to embrace this viewpoint and to act on it by imposing a complete trade barrier on the production and trafficking of this kind of speech. . . . What we have, then, is a valid speech-related end—eliminating child pornography—followed by a means of achieving that end, a proof-of-age requirement that refers to the content of the speech (specifically defined images) not because of its effect on the audience but because it is the kind of speech that implicates the government’s ban on child pornography. That kind of sensible reference to the content of speech—how else would the government impose a proof-of-age requirement designed to address child pornography?—does not rise to the level of a presumptively impermissible content-based regulation of speech.”

Judge Sutton, who authored the majority opinion, seems to ignore the fact that Congress has already imposed a “complete trade barrier” around child pornography. It has enacted laws that make the production of child pornography illegal. See 18 U.S.C. § 2251 (2006). There are also laws that make transportation, shipping, receiving, and distribution of child pornography illegal. See id. § 2252. In contrast to 2257, these provisions are narrowly tailored to target the specific, permissible goal of Congress that Sutton describes. Shouldn’t they be enough?

Six of the seventeen judges seemed to think so. In four separate dissenting opinions, those judges expressed concern about the application of Section 2257 to private couples, engaged in First Amendment protected conduct while in the privacy of their own homes. Judge Kennedy was not comforted by the assertions, made by the Attorney General, that those couples would not be prosecuted.

“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.”

Central to the dispute between the majority and the dissenters was the question of how many people, who are engaged in normally lawful activities, would be caught up in the “sweep” of Section 2257. How many is too many? How many is enough to call the statute “overbroad”?

“The majority states that the question of substantiality is: When ‘is it appropriate to invalidate a law in all of its applications when its invalidity can be shown (or assumed) in just some of its applications?’ . . . That could very well be framed as: ‘When is it appropriate to adjudicate unconstitutional applications of a statute on a case-by-case basis versus invalidating a law in its entirety because of some unconstitutional applications?’ The second formulation not only brings to life a central concern that runs throughout overbreadth–namely that unconstitutional applications otherwise may never make it before the court because speakers refrain from speaking, injuring speech and leaving few left to challenge the unconstitutional law–it also presents for consideration the burden–as it pertains to the substantiality of overbreadth–on a private couple in challenging the law as-applied.”

Another constitutional issue, which was raised by some of Connection’s subscribers, was based in the Fifth Amendment’s protection from self-incrimination. Everyone has the right to “remain silent” when they are the subject of a criminal investigation. The problem here is that the regulations surrounding Section 2257 allow law enforcement to use the records, provided in compliance with that statute, as evidence in other matters that are unrelated to the content for which the records were created. The majority refrained from ruling on this particular challenge, claiming that the issue was not ripe for review.

In his dissenting opinion, Judge Clay describes the danger of leaving the law intact:

“[T]he statute itself no longer begins and ends with the record-keeping requirement; because of the 2003 amendment, it now includes the threat of criminal prosecution for child pornography, sexual exploitation of children, and obscenity, based on information in the records required by the statute. . . . Because the statute now explicitly authorizes the government to use the identifying information for the purpose of prosecuting other crimes, the fear of Connection’s law-abiding advertisers that they may one day be subject to criminal investigation or prosecution is not unreasonable. To minimize this concern by stating that adult swingers who follow the law have nothing to fear ignores the reality that law-abiding people unfortunately can mistakenly become the targets of criminal prosecutions, with all of the accompanying burdens.”

One has to wonder if the judges that voted to uphold 2257 are allowing their own personal morality to motivate their decision. Should that kind of results-oriented jurisprudence really be allowed? This observer thinks not. Morality and legality are not the same thing. Isn’t preventing this kind of situation precisely the reason why the First Amendment is part of our Constitution? What say you?

4 Responses to Has the Sixth Circuit Declared Jihad on the First Amendment?

  1. justjss says:

    It’s a terrible decision, agreed … though it seems to me, in looking around the littered legal landscape, that the battle over 2257 is far from over.

  2. tom says:

    I think it’s a great decision.

  3. I think that personal views affected the deciding factor. I would have to agree with you. I think that the law against child pornography is a good one. But why try to take away are constitutional rights, that are fore fathers had fought and died for. My great great great grandfather William Henry Harrison, would roll over in his grave, to know that these judges are impinging on our first amendment rights I.E. he was the 8th President of The United States.

  4. [...] when Section 2257 is deemed unconstitutional as can be read here, and then retracted, there’s a problem and it lies in pure interpretation based on subjectivity and not logic. [...]

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