PHILADELPHIA, Pa.—As the legal battle against the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A (henceforth "2257"), winds its way through the appellate process in the Third Circuit Court of Appeals, the appellees (including Free Speech Coalition, the American Society of Media Photographers, Sinclair Institute and several individuals) today filed their reply to the government's reply to appellees' first appeals brief, which the government filed in early June—and as might be expected, First Amendment attorneys J. Michael Murry and Lorraine R. Baumgardner decimate the government's arguments.
The government's Answer Brief to Appellees' Reply Proof Brief makes an inauspicious start, arguing early on, for example, that secondary producers—usually retailers or e-tailers that have no contact whatsoever with actors—should nonetheless be required to keep 2257 records because "Unless secondary producers, like primary producers, are obligated to conduct age verification, recordkeeping, and labeling, vast numbers of sexually explicit images posted to the Internet would be effectively unregulated." Of course, since secondary producers rely entirely on primary producers—the ones who actually film the material—to supply ID records, and do no ID checking themselves, that argument continues to be absurd.
The government then argues that absent 2257, "secondary producers" could "accept sexually explicit images from anyone, regardless of the apparent age of the individuals depicted, and publish them," since distribution of child porn is only a criminal offense if the producer knows they're minors. And while the section of the Criminal Code cited, 2252(A)(2), does require that the advertis[ing], promot[ion], present[ation], distribut[ion], or solicit[ation]" of sexual child images be "knowing," and the burden of proof as to whether a particular depicted individual is a minor is on the government, in reality, if the "secondary producer" can't show that the young-looking individual is an adult, the government will—and often has—argued that the producer should have known, and courts have frequently convicted individuals of child porn distribution on that basis.
The government further argues that it's only by use of 2257 records that it could trace the origin of the underage sexual images, but the "secondary producer" would have to have obtained those IDs from the primary producer, and the secondary producer would make haste in directing the FBI right to that primary producer, whether the secondary has 2257 records or not—and that's a prime reason why 2257 as it exists today, absent the trial ruling by Judge Michael M. Baylson, is facially overbroad.
The government next argues that 2257 survives the court-mandated test of "strict scrutiny," meaning that the law would have to be justified by a compelling governmental goal or interest; be "narrowly tailored" to achieved that goal; and must be the "least restrictive means" for achieving that goal. However, 2257 fails at least two of those tests: As Murray and Baumgardner argue in their brief, the law is not narrowly tailored, since it requires that producers keep 2257 records on all performers, even those who are clearly adults.
"While the Statutes need not be 'perfectly tailored,' neither can they be as ill-fitting as one of Omar’s tents," the Murray/Baumgardner brief argues, quoting the late Justice Antonin Scalia. [Citations omitted here and below]
And 2257 is hardly the least restrictive means, since all producers are aware of the child pornography laws and would be fools to hire a performer without verifying his/her age—a method the government itself allows mainstream producers to do, since they keep tax and other employment records as part of their regular course of business.
Moreover, as Murray/Baumgardner state in their brief, "The Government argues that Plaintiffs 'fall short of establishing that the Statutes fail strict scrutiny.' But the Government has things backwards. It bears the burden of proving the Statutes employ the 'least restrictive means among available, effective alternatives.'" They also supply several alternatives to the current statute, such as limiting the law to persons who look like they might be minors; limiting it to commercial productions, or simply limiting it to primary producers; or using the opt-out letters approved for mainstream producers under 2257A. And finally, of course, there are the child pornography laws themselves that might give a producer pause.
In its brief, however, the government does get around to addressing the logic of law professor Richard H. Fallon Jr., who had authored an article for the Harvard Law Review arguing that if a court found that a law was not applicable "as applied" to one or more plaintiffs, that law could be invalidated for all plaintiffs in similar circumstances.
The government claims Fallon's argument shouldn't be employed here because "strict scrutiny does not require Congress to collect any particular quantum of evidence that actual minors have been sexually exploited before it can legislate to prevent the unlawful use of children by pornographers." One problem: So far, in the entire nearly 50-year course of the adult industry releasing sexually explicit productions to the public—hundreds of thousands of DVDs, web scenes, etc.—fewer than 10 individuals have been found to have been underage—and most of those were identified by adult producers themselves and the productions they were in recalled! Overkill, anyone?
One (inadvertent) bit of government humor: In the brief, it argues that, "Plaintiffs nonetheless argue that while 'the Government introduced hundreds of images of sexually explicit conduct depicting youthful-looking adult performers, not a single one depicted a minor.' If the government had introduced sexually explicit images of minors, its lawyers would have violated laws against possessing child pornography, and plaintiff's statement only underscores the need for objective age verification." Is the government seriously arguing that when it tries child pornography cases, none of the evidence it presents to the court and jury are the very images being charged as child porn?
And as Murray and Baumgardner state in their brief, "Of the thousands of successful federal child pornography prosecutions and many thousands more state child pornography prosecutions, the Government was powerless to demonstrate that any of them involved adult film producers?"
The government further argues that, "Without the Statutes [2257/2257A], however, it would be impossible for the government to establish that images that appear to show minors, but might nonetheless in fact depict individuals aged eighteen or older, are child pornography." Somehow, the DOJ attorneys forget that almost all of the underage performers who managed to sneak into the industry used false—and sometimes government-issued!—IDs stating that they were over 18. And nothing in 2257 requires producers to be able to tell a real ID from a good-looking fake!
The government's brief has a few other arguments, including that rather than striking down the entire statute, the court should pick-and-choose sections to save—and that in any case, the statute should continue to be applicable to individuals if not companies—but all of that has been well-challenged in previous briefs and argument.
On the other hand, in their "Reply Proof Brief," Murray and Baumgardner get right to the issues, pointing out that the government hasn't shown that 2257 has prevented minors from appearing in adult productions because... they haven't! As noted, producers would be fools to use a performer without verifying that he/she was over 18; the government knows that and failed to produce any instance where that wasn't the case.
The Murray/Baumgardner brief devotes an entire section to why 2257 is unconstitutionally overbroad, which they argue is similar to determining whether the statute is narrowly tailored under strict scrutiny.
"The Statutes unreasonably burden a substantial quantity of expression, for they 'reach essentially the entire universe of sexually explicit images'," the brief states. "They apply to 'the not negligible quantum' of expression depicting adults who, by their appearance, could not reasonably confused as minors, and to the 'substantial amount' of private, intimate sexual expression between American adults. Additionally, they impose their requirements on anyone who publishes sexually explicit expression—a secondary producer, in the parlance of the Statutes—who plays no role in its actual production." All of that fails strict scrutiny.
The brief then deals with the amount of sexually explicit speech the 2257 regulations have chilled, especially the speech of those like David Steinberg, who wanted to distribute a Norwegian fine arts magazine but feared he'd get busted it he did; Betty Dodson and Carlin Ross who had to remove 1,800 sexual images from their website for the same reason; and all of the other individual plaintiffs, who would have fallen afoul of 2257 for one or more of their actions.
Finally, Murray/Baumgardner tear apart the government's argument that simply by eliminating a word or two, or rewriting a few sentences, the statute could be saved.
"The constitutional defects in the Statutes cannot be remedied by parsing or construing a word here or severing a provision there," the brief argues. "The unconstitutionality of the Statutes lies in the language that defines their scope: 'whoever produces any book, magazine, periodical, film, videotape, digital image, digitally-or computer- manipulated image' containing sexually explicit conduct. It is that language which infects the entire statutory framework, and it is in that language that the Statutes’ unconstitutionality resides. Every burden the Statutes impose and each of their applications lead directly back to that expansive language."
Interestingly, the brief draws on the recently decided Brunetti case to bolster that argument: "There, the Supreme Court rejected the Government’s contention that the Lanham Act’s prohibition against the registration of immoral or scandalous marks could be spared by narrowly construing it to bar marks that were offensive because 'of their mode of expression, independent of any views that they may express.' The Court found it could not 'accept the Government’s proposal, because the statute [said] something markedly different.' ... The same problem is present here."
Now that both sides have presented their final written arguments to the Third Circuit, oral argument on the issues is currently scheduled for Tuesday, September 10, though Baumgardner warns that it might be rescheduled to any time within the week of September 9-13. And of course, it is likely that no matter which side prevails before the Third Circuit, the case will likely wind up before the U.S. Supreme Court.
