PHILADELPHIA, Pa.—The Third Circuit U.S. Court of Appeals today heard argument for the fourth time in the case that never seems to die: the lawsuit against the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A ("2257" for short).
The current appeal is based on the ruling issued in August of 2018 by U.S. District Judge Michael M. Baylson, which for the most part struck down the laws based on the appeals court's previous ruling that the judge had to consider the law in the light of strict scrutiny—that 2257 had to, in pertinent part, be narrowly tailored to achieve the government's goal of thwarting child porn, and had to be the least restrictive means of doing so—two requirements that the government clearly failed to achieve.
This time, the appeals panel consisted of two George W. Bush and one Obama appointees—Kent A. Jordan (W), Michael Chagares (W) and Luis Felipe Restrepo (O)—and it was clear from the start that they were well aware of what had previously happened in the case, and were ready to focus on the points raised by both sides in the briefs submitted earlier this year.
Although both parties had appealed Judge Baylson's ruling, Assistant U.S. Attorney Anne Murphy was the first to argue, and she began by reiterating the government's position that 2257 is all about making sure no underage performers are being used in sexually explicit content, and claiming that the use of young-looking performers is so pervasive that the law could not be considered overbroad, as the plaintiffs/appellees had claimed.
Judge Jordan, who asked most of the questions during the hearing, stopped Murphy right there, stating that the basic question before the court now, under strict scrutiny, is whether the law is indeed overbroad—and whether the government had essentially admitted that reality in previous filings by stating that the court could limit the scope of 2257 to images and productions exclusively featuring performers who were over 30 years old?
Murphy essentially sidestepped that question by referring the court to the Supreme Court's ruling in U.S. v. Stevens, where the high court invalidated a statute that prohibited the creation and sale of videos depicting dog fights based on the First Amendment's free speech protections, which Murphy claimed was an example of the court narrowly tailoring the anti-dog-fighting statute to allow videos of such fights to be sold.
But when Judge Jordan asked if that meant Murphy was agreeing that 2257 could be limited—"narrowly tailored"—so that it only applied to young-looking performers, Murphy denied it. She bolstered her point by calling the court's attention to the website of one of the plaintiffs, which contained several pages of close-ups of women's genitals, and argued that in such situations, it would be impossible to tell the ages of the women whose genitals were depicted.
But Judge Jordan noted that that argument seemed at odds with the government's admission that the application of 2257 could be limited to performers under 30—at which point Murphy undercut her case even further by noting that many adult videos contain both younger and older performers—which Judge Jordan took to mean that 2257 could not in fact be narrowly tailored. Murphy then suggested that the court could simply reaffirm the main statute but allow for certain exceptions.
At that point, Judge Chagares asked what the point was of requiring adult content to be labeled, to which Murphy explained that once the images were in commerce, the labeling allowed viewers (including possibly government agencies) to know where the performers' identity documents could be found.
Judge Jordan then made it clear that he and his fellow panelists understood the importance of making sure no underage performers appear in adult products, but noted that he must follow Supreme Court guidelines regarding which legal tests are applicable to this case.
"I'm not sure how, at least as to the as-applied challenges, you can ask us to say this is narrowly tailored," the judge stated. "I take it you're almost conceding at the podium that that's a tough sell."
"Your Honor, I'm not authorized to make any concessions," Murphy replied, again pleading that the court not strike the statute in its entirety but create exceptions that would save it.
Judge Restrepo then questioned why the government was taking the position, given Judge Baylson's findings from the evidence, that per his ruling, 2257 should not be injuncted nationwide. Murphy responded that the judge himself had excluded the organization plaintiffs—Free Speech Coalition and the American Society of Media Photographers—from his finding that the individual plaintiffs had successfully argued that the law was unconstitutional "as applied" to them, whom she described as "niche players," but that the organizations had no standing to make that argument. She also contended that commercial porn is largely focused on younger performers, while many of the individual plaintiffs were more interested in the artistry of sex and nudity.
At that point, J. Michael Murray, the plaintiffs/appellees attorney, took the podium and immediately focused on the "least restrictive means" portion of the strict scrutiny test.
"It's beyond debate that under strict scrutiny, the government has the burden of proving by evidence that the various less-restrictive means proposed by the plaintiff would in fact be ineffective," Murray began, referring to his clients' concession that, among other measures, they would promise to keep performer identity records, were currently doing so and would continue to do so even absent 2257. "We submit the government failed to meet that burden."
Murray also noted that the reach of 2257 is so wide as to be overbroad—another strict scrutiny no-no.
"It's important, we think, to emphasize that the statutes cover the entire universe of sexual images," he continued. "And that's important because it reads 'whoever produces any sexually explicit image' has to comply with all the burdens."
Judge Jordan then asked Murray to address the difference between the plaintiffs' as-applied and facial challenges and its claim that the statute is overbroad, a claim for which the plaintiffs bear the burden of proof.
Murray responded that it was clear there was an abundance of images in the marketplace of performers who could not be mistaken for minors, but Jordan harked back to the trial testimony of anti-porn activist Gail Dines and others who claimed that roughly 35 percent of the explicit material out there makes reference to the youth of the performers.
"Assume for the sake of discussion there are that many. In an overbreadth analysis, how is that not enough for the government to say you've identified the problem and you've identified facts that show it's a real problem—how is that facially invalid?" he asked.
"Well, it was Dr. Dines who testified to that fact," Murray responded. "On cross-examination, she basically admitted that only one-third of the material on the internet is of sexually explicit images as to which one could be confused as to whether or not the person depicted is or is not a minor. In other words, two-thirds of the material are of persons who are obviously adults. That's a huge quantity of material that is not affected in terms of furthering a governmental interest by burdening all of that expression. ... The court recognized that our plaintiffs, all of them, had substantial quantities of material involving people over 30 and much higher quantities of people over 25 which this court said demonstrate, and I'm quoting, that the number of performers to whom the statutes apply yet for whom requiring ID does not protect children, there's a significant quantity of that."
Judge Jordan then attempted to turn it into a numbers game, suggesting that if there were tens of millions of images "out there" that are at least questionable, age-wise, hasn’t the government demonstrated it has enough of a foundation to show there's a legitimate problem? Murray countered that that is one factor, but argued that the "substantial body of private, non-commercial expression" is another grouping to which 2257 can't constitutionally be applied.
"We showed a lot of areas of overbreadth that are sufficient to meet the test that the overbreadth is substantial," Murray stated. "We begin with, there is clearly a quantity of clearly mature adults, which is one area of overbreadth. We next come to the question of, there is a substantial body of non-commercial private expression. ... There are millions of Americans who post sexually explicit material through their cellphones in what is called sexting, that would be required to comply with this law, and that would be an unconstitutional application of this law."
Murray further noted that the government had previously agreed that such material could be exempted from 2257 in order to uphold its constitutionality, but the court said it could not rewrite the statute.
But Judge Jordan wasn't satisfied, and asked Murray how he thought the court should weigh the constitutional versus the unconstitutional applications of the law.
"If all they've shown is that there are tens of millions of those images [of youthful-looking performers] but there's 40 million images of obviously mature adults. ... Your Honor suggested that by showing tens of millions, that ends the inquiry. I'm saying it doesn't," Murray retorted.
The pair went back and forth on this point for a few minutes until Judge Jordan turned his attention to whether the Free Speech Coalition (FSC) and the American Society of Media Photographers had standing to sue in the first place. Murray explained that at the trial, attorney Jeffrey Douglas, a board member of FSC, had testified who the Free Speech members are, how they're burdened by 2257 and had to endure unannounced inspections, etc.
"The challenge under strict scrutiny doesn't depend on the particular facts as to any particular member of the Free Speech Coalition so long as all of the members are burdened by the statute because they disseminate sexually explicit material that requires them to keep the records," he explained, adding later that, "If a statute fails the least restrictive means test, it's unconstitutional, period. The Supreme Court has always said that."
Murray then gave other examples of the high court striking down laws that unduly burdened speech, noting cases involving Playboy's cable channel, the prohibitions against selling violent video games to minors, a state limiting a woman's right to abortion, and even a law criminalizing a person falsely claiming to be a war hero.
"Once strict scrutiny was not satisfied, the whole ordinance was struck," he stated, also noting that the high court has stated that it's hard to tell the difference between a facial challenge and an as-applied challenge, both of which are present in this case.
"It's a very fine distinction, and the court has noticed that, between facial and as-applied, and particularly under strict scrutiny," he added. "When you have a statute like this that fails strict scrutiny because its language cannot be interpreted or construed narrowly, then there's really no difference. It flunks the test, and therefore it's unconstitutional."
Judge Jordan then questioned whether a nationwide injunction against 2257 goes too far, considering that this case only involves 12 plaintiffs, several of whom would be described as "niche plaintiffs."
"The district court was well within its discretion under Whole Women's Health, under Citizens United," Murray answered, adding that Nina Hartley, now in her 50s, is a plaintiff, and that the government had subpoenaed the records of Vivid Video, and found that more than 60 percent of its performers were over the age of 25.
"The adult film industry was very well represented in this case," he retorted.
Judge Jordan then asked Murray to respond to the government's contention that one federal judge in Philadelphia shouldn't have the power to grant a nationwide injunction against the application of a law without giving other districts a chance to weigh in on the issue—something he described as an "abuse of discretion."
Murray defended the process, asserting that if the statute "flunks strict scrutiny" it doesn't matter who is challenging the law. "There was a full record made by both sides. This was not a dilute record. This was an eight-day bench trial with all kinds of experts and plaintiffs, and as I said, whenever the Supreme Court says a law flunks strict scrutiny... I can't find a case where the Supreme Court has held that a law flunks strict scrutiny but didn't simply strike it down in its entirety. And so I think if a law flunks strict scrutiny, it's not really a factual matter anymore; it's that Congress had to write a narrower law."
The judge and Murray went back and forth on this point for several minutes, but Murray's time at the podium was up, and the panel allowed Murphy to attempt to rebut some of Murray's points, most notably about the differences between facial and as-applied challenges, and whether FSC had standing to be a plaintiff. After Murphy rehashed her previous arguments, the court was declared in recess and the judges came down from the bench to congratulate both attorneys for doing a good job of arguing the case.
Later, Murray recapped the day's proceedings: "We have argued for years that the government's arguments are without merit, but there's always two sides, and I think this court asked some very good questions; they obviously had read the briefs and were familiar with the record and some of the important constitutional issues, so from that standpoint, that's all you can ask of any court, is that they were engaged and it was a very spirited argument, and we'll see what they ultimately decide."
He also noted that, should the court rule in favor of the plaintiffs/appellees, the government would likely first ask for an en banc panel to reconsider the decision, and failing that, appeal to the U.S. Supreme Court.
