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?

An Inside Look at the Adult Entertainment Industry’s Fight to Stamp Out Child Pornography

Many anti-porn activists like to try to connect adult entertainment with child pornography as a means to build support for their desire to roll back the First Amendment. Let’s face it, screaming “protect the children,” is a good way to get a lot of people to set aside logic and get them on your side.

However, those who have any regular contact with the adult entertainment industry already know that the industry has zero involvement with productions involving children. In fact, the adult entertainment industry is the child pornographer’s worst enemy. Robert D. Richards and Clay Calvert recently published an article that shines some light on the facts. See Untangling Child Pornography From The Adult Entertainment Industry: An Inside Look at the Industry’s Efforts to Protect Minors,” 44 Cal. W. L. Rev. 511 (2008)

Calvert and Richards highlight the efforts of the Association of Sites Advocating Child Protection (ASACP, http://www.asacp.org/page.php). Anti porn zealots would probably be surprised to learn that ASACP, founded in 1996, is a non-profit organization fully funded by the adult entertainment industry to fight internet child pornography and to help parents prevent children from viewing age-inappropriate material online. ASACP investigates thousands of reports per month to determine the hosting, billing, IP address, ownership, and linkage of suspected child pornography sites and then forwards the information to law enforcement, the National Center for Missing & Exploited Children (NCMEC), and hotlines in other countries.

The article includes interviews with attorneys and activists in order to shed light, on how ASACP works to fight internet child porn. The interviews highlight the difficulty the adult industry faces both in stopping politicians from linking mainstream adult entertainment to child pornography and in changing public perception about this conflation.

“In a highly ironic twist, while adult entertainment industry-funded ASACP is aiding law enforcement to stamp out child pornography, the FBI is simultaneously conducting age-verification and record-keeping inspections, pursuant to 18 U.S.C. § 2257, of adult movie companies to ensure they are not using underage performers, which would be tantamount to creating child pornography.”

Calvert and Richards dispel some popular misconceptions about the adult entertainment industry, such as the fanciful problem of underage performers in the mainstream adult movie business.

ASACP director Joan Irvine states, “I do not see one [a problem with underage performers] and, in fact, there really hasn’t been one. The adult industry is by adults and for adults. We don’t see it, people aren’t doing it and it is not worth it.” On politicians who have tried to link the adult porn industry with child pornography, “[t]hey didn’t get the distinction between them. I also really do believe that the current administration is generally anti-adult entertainment. There are almost no data that could ever even show that the adult industry was involved with underage children in movies and, thus, child pornography. With our hotline, for the first time, we actually have empirical data that show no involvement. Before, the industry didn’t have that data, so the government could say, “Go show us the data.” Irvine goes on to recall how, “[a]t one of the last meetings that I went to, Dan Larkin, an FBI forensic specialist, said “We know the industry is not involved in this and that it is organized crime that is involved in child pornography, mainly out of the Eastern European bloc countries.”

The article discusses how adult entertainment insider, Alec Helmy, started ASACP. Helmy “wanted to have a place where Webmasters could report it and not feel that they were going to be investigated for reporting it, because we don’t keep IP addresses.” The article sums up the ASACP’s ongoing fight against child pornography and those who make and distribute it, quoting Irvine again, “[c]hild pornography doesn’t exist in the industry, but the perception exists. Child porn is a big one, but we’ve gotten it to a point where we have a handle on it and we’re working with the right people. They know and recognize us for being able to handle it.”

In an “academic” environment too-often polluted by anti-freedom crybabies, it is refreshing to see work like this — work that actually examines the facts about the link between adult porn and child porn. Once the “link” is effectively examined, the authors come to the unshakable conclusion that not only is there no connection, but that the adult entertainment industry is a child pornographer’s greatest enemy and worst nightmare.

-Zac Papantoniou (guest blogger)

Connection Distributing v. Keisler – Section 2257 Struck Down

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.

2257 Inspections in Florida!

XBiz reports that the FBI has conducted five 2257 inspections in the state of Florida, and that all five turned up violations. (source). None of the violations were due to underage performers, and appear to be mere bookkeeping problems.

Prior post – how to handle a 2257 inspection.