PHILADELPHIA—It's not uncommon for the United States Supreme Court to hand down decisions that affect cases still in progress, though somewhat less common for it to outright overrule its own prior decisions (such as it did with Lawrence v. Texas), but the recently decided case of Reed v. Town of Gilbert, with the Supremes invalidating an Arizona town's signage ordinance, is an instance of the "secondary effect" created in Reed affecting the adult industry's battle against the onerous record-keeping and labeling law, 18 U.S.C. §§2257 and 2257A (hereafter just "2257").
Today's hearing was held in the Ceremonial Courtroom of the Thomas A. Byrne Federal Courthouse, and after some initial pleasantries—notably, Judge D. Brooks Smith remarking, "I can't say it's déjà vu all over again, but...," referring to the fact that the same parties were arguing the same case on this same day last year—Judge Smith dove right into the meat of the disagreement by asking how the Reed case had changed the level of scrutiny (if it did) that should be applied to Free Speech Coalition v. Attorney General.
As those who've followed the 2257 case are aware, since the first time it looked at the issues, the Third Circuit panel has ruled that the case is one of intermediate scrutiny, meaning that if the government can show that the law under challenge furthers an important government interest in a way that is substantially related to that interest—in this case, keeping minors out of adult movies, web content and elsewhere—then the law survives. In the Reed case, for example, the Town of Gilbert's claim was that temporary church signs indicating where services were to be held were adversely affecting traffic in the area and could be banned—a limitation that was not applied to signs of a political or "ideological" nature.
So what the Supreme Court said in Reed was that Gilbert, through its ordinance, was making a distinction between different types of speech, and that therefore its ordinance was "content-based" and it would need to overcome a higher standard of scrutiny—"strict scrutiny"—to survive, and that Gilbert failed to prove, as strict scrutiny requires, that its ordinance targeted a "compelling governmental interest"; that the ordinance was "narrowly tailored" to achieve that goal; and that the ordinance was the "least restrictive means" by which that goal could be accomplished.
But perhaps the main finding in Reed as it applies to 2257 is that if an ordinance (or other law) is, on its face, content-based, it must be considered under strict scrutiny—and targeting adult content on the basis that it might depict minors engaged in sexually explicit conduct was exactly the type of content-based restriction (even if that restriction was merely expensive record-keeping and labeling, with felony convictions for failure to achieve record-keeping and/or labeling perfection) the high court was referring to, plaintiffs/appellants attorney J. Michael Murray was arguing.
Indeed, deeming Reed a "landmark decision," Murray pointed out to the court that the ruling allowed for no exceptions once the content of the speech was implicated—and quite obviously, 2257 targets whether minors are being used in the content of adult sexual speech. He also suggested that Reed had overruled at least some aspects of Ward v. Rock Against Racism and several successor speech cases in allowing the use of intermediate scrutiny when a substantial governmental interest was in play.
At that point, Judge Smith questioned whether the content of the adult speech was actually at issue, since 2257's announced purpose was simply to keep minors out of adult productions, but Murray reminded him that Reed requires that courts look at the statute itself "on its face," rather than whatever purpose the government was arguing that the statute fulfilled—and that that wording made it clear that adult content, and only adult content, was being targeted by the law. It was an argument—and a phrase, "on its face"—that would come up several times during the roughly 45 minutes that the panel heard from the attorneys.
Murray said that the content was being targeted in two ways: first, the fact that only images of sexual activity fell under 2257's purview, but also that under 2257A, in allowing producers of simulated sexual content to simply file a letter with the attorney general stating that that producer already kept labor and tax records on the performers and therefore didn't have to keep 2257 records nor label the product with a 2257 label, 2257 discriminated against producers of actual sexually explicit content, which were required to do both of those things.
But the panel clearly wanted to nail down the question of strict vs. intermediate scrutiny, so Judge Anthony J. Scirica asked Murray to comment on whether the intention to keep minors out of adult content was enough of a compelling governmental interest to keep 2257 alive. Murray admitted that there was indeed "some compelling governmental interest" in keeping minors out of porn, but again referenced that 2257 was clearly a content-based law and, post-Reed, must be considered under strict scrutiny. Judge Smith, easily the panel's most conservative member, appeared to agree with him.
Judge Marjorie O. Rendell then referenced the government brief's use of the original 2257 case, 1994's American Library Assn. (ALA) v. Reno, and noted that the (Third Circuit) panel in that case had used the Ward case as well as the "secondary effects" doctrine in City of Renton v. Playtime Theatres to justify upholding the 2257 law—but Murray pointed out that the ALA, Ward and Renton cases were all pre-Reed, and that the high court's view of content-based speech was now clearly different post-Reed.
Both Judges Scirica and Rendell then asked about Congress's intent, in passing the law, to essentially supplement existing child pornography laws which it apparently thought were insufficient in keeping minors from performing sexually, but while Murray agreed that that was their intent, he argued that 2257, with its minute attention to detail in how records were kept, how long they were kept, what needed to be included in them and how long they needed to be made available, was hardly the "least restrictive means" to accomplish that task.
Judge Rendell then suggested that if the panel decided that this was in fact a "strict scrutiny" case, shouldn't it be remanded to the trier of fact, Judge Michael Baylson, to reconsider the case in that light? Murray disagreed, noting that both sides had presented more than sufficient factual evidence in the case during its trial that the only issue left to decide was the legal one of whether strict or intermediate scrutiny applied.
Much of the rest of Murray's argument time was taken up with a discussion of the scope of the Renton decision, which the government had argued validates 2257 under Renton's "secondary effects" doctrine in some way similar to the argument in Renton that the existence of adult retailers in an area brings down that area's property values and leads to more crime in the area. Murray tried to point out that Renton is a zoning decision, not a content-based decision, but a couple of the panelists pointed out that Renton had been cited in several cases that didn't involve property—a statement that Murray disputed, noting that Justice Clarence Thomas could have used the Renton "secondary effects" doctrine to support the high court's decision in Reed, but instead used the "content-based speech" doctrine instead because it was more applicable to that type of case.
As before, the appeals panel didn't hold the attorneys strictly to the 15 minutes each side was allotted for argument, so Murray used his final few minutes at the podium to note that the case of U.S. v. Patel, involving government access to hotel registers, made it clear that the unannounced search procedures of 2257 were clearly unconstitutional, though in response to a question from Judge Scirica, admitted that an adult producer's records could be searched in response to an administrative subpoena, and that even restricting 2257's record-keeping to those performers under 25 or 30 years of age also might be okay. However, Murray did point out that 2257 was written so broadly that there's no way it could survive the strict scrutiny requirement that the law be the "least restrictive means" of accomplishing the government's purpose.
Finally, Judge Rendell asked, assuming that the Renton "secondary effects" doctrine doesn't apply only to zoning, how can the adult industry argue that child pornography is not a secondary effect of adult pornography? The question seemed to take Murray aback for a moment before he responded that the two had nothing to do with each other. It was a stance he maintained even after Judge Rendell asked about "unregulated" adult porn in the absence of 2257, with Murray also noting that in any case, if the law is content-based, Reed rejects even the benign intentions of government; the law still must be considered under strict scrutiny.
When it came Murphy's turn to argue, she seemed to agree that under Reed, the government's purpose in enacting a law was not germane to its constitutionality, but she reiterated that the court could still apply the Renton "secondary effects" doctrine to 2257 in that maintaining performers' identification documents could help prevent the "secondary effect" of minors from appearing in sexual material.
In response to a question from Judge Rendell regarding the argument that Reed requires content-based restrictions to be judged under strict scrutiny, Murphy argued that 2257 doesn't refer at all to the content of the speech it requires the industry to keep records of, but simply to the fact that it wants to keep minors out of it, and adult porn is the only place that minors could appear that would trigger the law. Nonetheless, she admitted, the line between something being content-based and being content-neutral was a "difficult" one.
Still, Judge Smith opined that it was a line that Reed wants the panel to draw, with Murphy responding that Reed is about content distinctions while 2257 is about the harm done to minors—a distinction that Judge Rendell noted is not a consideration under Reed, which talks solely about content-based speech. It was a response that was often given to Murphy's arguments about the purpose of the law: that under Reed, intent was irrelevant.
Murphy also argued that nothing in 2257 directed anyone producing sexually explicit material to change or ban that material in any way, and that therefore, 2257 should not be considered to be content-based, but instead should be taken as "secondary effect" type of restriction—a response that led Judge Scirica to ask what test could be used to decide what is "expressive content" and what isn't. Murphy returned to her secondary effects argument, arguing that Congress wasn't targeting content with 2257 but rather minors appearing in that content—and that therefore, under the intermediate scrutiny used in Renton and City of Los Angeles v. Alameda Books, no (legal) adult content was actually being affected. And once again, Judge Smith reminded her that since 2257 only applied to sexually explicit content, the government's purpose of using the law to protecting minors didn't apply.
Finally, Murphy was reduced to the argument that various cases including Renton and Alameda were decided based on the harm that flowed secondarily from adult speech, that it was merely coincidental that 2257 applied only to adult sexual speech, and that it was not even necessary to look at the content of adult speech to find 2257 constitutional, since it was only concerned with minors. She also argued that it could not be true that Congress passed laws against child pornography without, as a corollary, requiring, under 2257, that adult content producers prove that their products didn't involve children.
Finally, Judge Scirica asked whether, under the strict scrutiny doctrine, perhaps other statutes could be created that would accomplish Congress's purpose. Murphy responded that she would like to file a brief on that topic—but when Judge Rendell once again suggested that perhaps that issue could be resolved on remand of the case to the district court, Murphy said she would like more time to consider that issue.
In further questioning, Judge Scirica was still apparently trying to wrap his head around the idea that child porn is somehow caused by (or is a secondary effect of) adult sexual speech, but Murphy again responded that it was not the government's intention to regulate speech but merely something "associated with" speech; that the government, in seeking to protect minors, had a broader interest than the speech itself, and that that interest only "happened" to affect adult speech, and that 2257 did not cause any reduction in adult speech.
Murray had reserved a few minutes to respond to Murphy's presentation, and right off the bat, he noted that if the court intended to apply Murphy's Renton "secondary effects" argument to the 2257 case, it would also have to apply the Alameda Books ruling as well—a ruling which allows a defendant to present evidence which contradicts the government's claims of what its law accomplishes—in this case, keeping minors out of adult industry-produced porn. Murray also argued that in order for Renton to be applicable, the government would have to prove causation, that adult porn somehow causes children to appear in sexual content, in order for the secondary effects doctrine to kick in, and it can't.
In fact, after argument concluded, Murray told AVN, "I don't think there is any evidence, because the fact of the matter is, the evidence which we already produced at trial demonstrated that the use of underage actors and actresses in adult films is a non-existent problem. The adult film industry always did its best to insure that no minors appeared, and in the handful of cases over the years where a minor slipped through the cracks, that minor used a fraudulent ID, which 2257 does not guard against. So we feel the record already demonstrates that Congress was solving a problem which doesn't exist, which is the use of minors in adult films or in any other legitimate production of sexual images. And child pornographers are not going to comply with the statute in any case."
But in any case, Murray was pleased with the panel's interest in the case.
"It was a very, very spirited panel," he noted. "I was very impressed by how thoroughly they understood the issue and it was an excellent give-and-take between the panel and both lawyers."
At the conclusion of the hearing, the panel ordered that a transcript be prepared of the proceedings, suggesting that they may want to study the arguments of both sides more carefully before issuing their opinion. Check back with AVN for further actions taken in this case.
