3rd Circuit Upholds Constitutionality of 2257

PHILADELPHIA—In a ruling that is likely to be appealed to the U.S. Supreme Court, the Third Circuit U.S. Court of Appeals today issued a ruling upholding the constitutionality of the federal recordkeeping and labeling law, 18 U.S.C. §2257, despite the fact that the law does little to prevent minors from appearing in adult content.

The ruling was authored by Judge D. Brooks Smith, for the panel consisting of himself, Judge Marjorie Rendell and Judge Anthony Scirica. It begins by laying out the rationale for Congress having passed the §2257 (and later §2257A) laws: Adult producers use "youngful-looking performers" and "Law enforcement was ill-equipped visually to ascertain these performers’ ages, and the risk that children were still being used in pornographic materials remained." Of course, as AVN has previously pointed out, §2257 requires only that producers retain copies of performers' identification documents; it doesn't require that they be able to tell real documents from good counterfeits or fraudulently-obtained driver's licenses, passports, etc.

The argument that the plaintiffs in the case, which include Free Speech Coalition (FSC), Sinclair Institute, the American Society of Media Photographers (ASMP) and several individuals, had made, that adult producers could simply adhere to the policy set forth in §2257A—informing the Attorney General of the United States that the plaintiffs kept tax and other records on performers that would do away with the need to keep identification documents in the specific manner set forth in §2257—is given short shrift in the opinion. In fact, it is relegated to one footnote on page 6: "These exemptions are intended to apply to industries where Congress believed that existing regulatory schemes already 'adequately achieve[d] the same age-verification ends as the Statutes,' such as the mainstream motion picture and television industries."

In other words, Congress doesn't trust the adult industry to police itself, though it has been doing so well for nearly the past 30 years.

The opinion spends several pages recounting the arguments made at trial, and assessing the credibility of witnesses. For example, they found anti-porn zealot Dr. Gail Dines' testimony that "teen porn" accounts for about one-third of the material on tube sites to be "more methodologically rigorous" than that of plaintiffs' experts, including the noted sociologist Dr. Daniel Linz. They also agreed with the assessments of Judge Michael Baylson, who presided over the trial, that plaintiffs' experts on the widespread use of sexting should be viewed skeptically, while giving credence to the testimony of Dr. Francis Biro that "12, 13 and 14 year olds can appear to be much older than they are because they may experience early sexual and physical maturation."

At times, it appears as though the Third Circuit is straining to uphold the law, even though there are indications in the opinion that §2257 is in fact overbroad and overly burdensome.

"Thus, assessing the scope of the burden on speech looks not just to the quantity of speech burdened, but also to the qualitative nature of that burden," Judge Smith wrote. "And even if a significant amount of speech is burdened in a manner that is not strictly necessary to fulfill the Government’s stated interest, a regulation may in some circumstances still be sufficiently narrowly tailored if the nature of the actual burden imposed on that speech is minimal."

That statement gives little weight to the voluminous testimony at trial regarding the costs associated with maintaining not only the performers' IDs, but copies of the material in which they appear, and the cost to "secondary producers" (aka distributors and retailers) of obtaining and indexing IDs for performers who appear in the (in some cases) thousands of products they sell from all different producers even though those "secondary producers" in most cases have no contact with the performers whatsoever.

In fact, the Third Circuit goes a long way toward dismissing the burden of those costs altogether: "We acknowledge that compliance with the Statutes and regulations, as with any regulatory requirement, is more costly than if those requirements did not exist. ... But these requirements are not so onerous as to become prohibitive. Indeed, as the District Court observed, even plaintiff Sinclair Institute, 'the world’s largest producer[] and distributor[] of adult sexual education and health media,' spends only $75,000 per year to comply with the Statutes despite generating millions in revenue from the production of sexually explicit images."

Of course, the amount of content that Sinclair produces over the course of a year is small compared to some of the larger video and web content producers and aggregators, but the court chooses to ignore that.

Similarly, the court goes out of its way to claim that even though "[s]ome Plaintiffs testified that they modified their works in response to the Statutes’ requirements, while others produce fewer or different images than they would have if the Statutes did not exist," somehow, that "is not directly attributable to the Statutes and regulations themselves and is not equivalent to a governmental ban."

Also, while the Third Circuit overrules the government's argument that neither Free Speech Coalition nor the American Society of Media Photographers has standing to bring the lawsuit, the court uses both organizations' diverse membership to overrule the groups' "as-applied" challenge to the law, stating that such relief might apply to some members and not to others—implying that those members might have to file their own lawsuits to receive relief from the oppressive law.

Or as Judge Smith put it, "But even if FSC’s and ASMP’s members collectively produce a significant portion of the works generated by the adult film industry, aggregating that industry’s speech in toto is an improper method for identifying the burdens imposed on specific members. Generalized statements regarding the adult film industry’s speech cannot replace the individualized inquiry required, and FSC and ASMP lack associational standing to bring an as-applied First Amendment claim on behalf of their members. Our analysis of Plaintiffs’ as-applied First Amendment challenge is therefore limited to those Plaintiffs engaged in the actual production of images covered under the Statutes." That statement essentially dismisses the interests of the organizational plaintiffs.

And what about the argument that many performers are of an age that they could never be mistaken for minors; why should content producers be required to keep their identification documents? The opinion spends a good three pages discussing how clearly mature performers might be exempt from the regulations ... except, "This observation does not mean, however, that the Statutes are not narrowly tailored as applied to these Plaintiffs. Indeed, time and again we have stated that under intermediate scrutiny, the Government need not employ the least restrictive or least intrusive means. ... And in this case,'[t]he Government must be allowed to paint with a reasonably broad brush if it is to cover depictions of all performers who might conceivably have been minors at the time they were photographed or videotaped,'" citing the original American Library Association lawsuit against §2257.

The court also dismissed the idea that it (or anyone) could set an age limit above which IDs would not be needed—and certainly not as applied to these plaintiffs, all of whom create product in which at least some performers are of a type—under 25—that Dr. Biro would find could be mistaken for minors. And besides, "Another crucial point here is that Plaintiffs do not face a substantial additional burden attributable to keeping records for clearly mature performers on top of the records they must maintain for young performers. Instead, most of the burden Plaintiffs face under the Statutes is due to the procedures they must put in place to store, organize, and make available records for performers generally. These startup costs associated with creating a recordkeeping system under the Statutes, including the costs of creating indexes, advance the Government’s interests in preventing the sexual exploitation of children. Collecting additional identification for the clearly mature performers that each Plaintiff also employs and inserting them into this system does not impose a significant additional burden."

Those looking for humor in this opinion might find it in the footnote on page 32, dealing with Betty Dodson's and Carlin Ross's "genital art gallery" which once graced their website.

"Moreover, projects like these illustrate precisely why Congress enacted the Statutes," Judge Smith wrote. "Regarding Dodson’s and Ross’s project, it is especially difficult to discern whether a person is a minor based on an isolated picture of that person’s genitals."

But since it is almost impossible to identify a person, let alone the person's age, simply by looking at their genitals, and since the "genital art gallery" displayed only nudity, with no sexually explicit content, one has to wonder why it's necessary to place the recordkeeping burdens on Dodson and Ross? But Smith had the answer: "The difficulty in distinguishing minors from adults that justifies the Statutes’ reach thus pervades both of these projects."

There was also a fair amount of testimony at trial to the effect that §2257 affects not only commercial producers of sexually explicit content, but also people who photograph or videotape themselves having sex in the privacy of their own homes for their personal use, and people who Skype or sext sexual photos/videos of themselves to their partners, again not for commercial distribution.

The Third Circuit's reaction? "No Plaintiff therefore meets the prototypical example we identified of an individual who produces an 'illustrated sex manual for the elderly.' Nor do any of the plaintiffs in this litigation produce only images intended for private use rather than public distribution... Whether the Statutes and regulations may be constitutionally applied to individuals falling in either of those categories are therefore questions we need not reach."

But the fact remains that it's been several years since an underage performer has managed to sneak into adult industry content, and all current performers are adults—a fact producers strive to certify, since allowing an underage performer to appear in one of their scenes would open them to charges of child pornography and force a recall of product that could cost tens of thousands of dollars. In other words, considering its sweep, §2257 can only be described as overbroad—except in the Third Circuit's eyes.

"Evidence demonstrating that the conceivably impermissible applications of a statute are in reality widespread is probative of overbreadth," the Third Circuit admits. However, "Instead, determining whether a statute is facially unconstitutional requires 'as much in the way of judgment' as it does 'a comparison between the constitutional and unconstitutional applications of a law,'" the court wrote, referencing the Connection Distribution §2257 case from the Sixth Circuit.

But after noting that it had already rejected the government's offer to limit the scope of §2257 to commercial images, and admitting that "the Statutes reach essentially the entire universe of sexually explicit images, 'including private, noncommercial depictions created and viewed by adults in their homes'," the court still thinks that the balancing act between "protecting children" and "burdening speech" falls on the side of the kids. To do so, it uses Dines' figures that "teen porn" accounts for 34.2 percent of all pages on porn websites, and even without figuring in "the amount of sexually explicit materials featuring young adults available in print or other offline media ... those results support the proposition that the legitimate sweep of the Statutes is vast."

"Given the sizeable quantity of the Statutes’ valid applications, Plaintiffs face a difficult task to show that the Statutes are substantially overbroad," Judge Smith wrote, ignoring the fact that none of the government's experts was able to identify a single person in any of the content they examined that was in fact underage.

What follows is a several-page long discussion of the prevalence of private, non-commercial sexually explicit images, and the court seems to accept the experts' testimony that indeed, there's a lot of it out there which shouldn't be targeted by §2257 ... but, "Nevertheless, the invalid applications of the Statutes that Plaintiffs have demonstrated still pale in comparison with the Statutes’ legitimate applications, which counsels against holding the Statutes facially invalid. ... Facial invalidation thus 'require[s] that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.' ... Plaintiffs have failed to prove that the invalid applications of the Statutes are substantial relative to the Statutes’ legitimate scope." [Emphasis in original]

And besides, the court continues for two more pages, "protecting the kids" pretty much outweighs every other consideration—even if no one's been able to find any kids in the adult material under examination.

Roughly the last quarter of the opinion is devoted to the plaintiffs' Fourth Amendment claims; most notably, that the inspections allowed under the §2257 regulations are warrantless, and on that topic, the appeals judges agreed with Judge Baylson that such searches do violate the plaintiffs' rights.

But first, Judge Smith details the reasons why the plaintiffs have standing to challenge the inspection regime, stating, "despite the lack of an existing inspection regime to implement [Code of Federal Regulations] §75.5, Plaintiffs are suffering real costs as a condition of compliance with a regulation that they urge is unconstitutional. Sufficient injury exists to confer standing where 'the regulation is directed at [Plaintiffs] in particular; it requires them to make significant changes in their everyday business practices; [and] if they fail to observe the ... rule they are quite clearly exposed to the imposition of strong sanctions,' even where there is no pending prosecution." They also shot down the government's argument that the adult industry is "closely regulated," and that therefore, the FBI should be able to conduct "administrative searches" of such industries without first obtaining a warrant.

The appeals judges also take issue with the requirement that producers make their §2257 records available at least 20 hours per week in case the FBI wants to look at them, noting that, "The cost of complying with this regulation thus affects each producer of sexually explicit images in a concrete way that is sufficient to establish an injury-in-fact."

In the end, the Third Circuit panel denied all of the plaintiffs' First Amendment claims except for the issue of the warrantless inspections allowed under Title 28 of the Code of Federal Regulations, Sec. 75.5(c)(1), which it too deemed unconstitutional, and it remanded that issue to Judge Baylson to enter a judgment in keeping with that finding. It also remanded the other Sec. 75.5(c)(1) issue regarding the hours that records must be made available for further consideration by the trial court.

"We're obviously extremely pleased that the Third Circuit unanimously agreed with our arguments on the important Fourth amendment issues that we raised in this case, and agreed that the inspection regime is unconstitutional under the Fourth Amendment," said J. Michael Murray, who with his associate Lorraine Baumgardner represents the plaintiffs in the lawsuit. "They reviewed the evidence that we had amassed of the 29 inspections that had occurred some period of years ago. We had cross-examined the FBI agents at length during the trial of this case in an effort to prove that the warrantless inspections violated the Fourth Amendment and we defeated the government's arguments to the contrary, and the Third Circuit has ruled that as applied to the plaintiffs, which includes the Free Speech Coalition and its members, the inspection regime is unconstitutional under the Fourth Amendment.

"On the First Amendment issues, we were disappointed that the court did not strike the statute down on First Amendment grounds, though it did remand the case to the district court to revisit the issue of the requirement that producers be available at least 20 hours per week where they keep their records," he continued. "The Third Circuit has said that that provision might be unconstitutional under the First Amendment, and we can press on with our First Amendment arguments, should we choose to, either by way of a petition for rehearing en banc, or by seeking review in the Supreme Court, but the partial victory that was achieved by these plaintiffs, and particularly by the courage of the Free Speech Coalition on the Fourth Amendment issue is, we think, pretty significant, and certainly it has a very, very substantial negative effect on the efficacy of §2257."

"This decision was a hard-fought victory for adult industry," noted Diane Duke, CEO of plaintiff Free Speech Coalition. "The Third Circuit’s decision struck down the recordkeeping inspection as unconstitutional under the Fourth Amendment, dealing a substantial blow to enforcement of the 2257 regulations. The decision prohibits the routine, warrantless inspections which were the hallmark of the original regulation. Under today’s ruling, the government can no longer appear at the doors of Free Speech Coalition’s members without a search warrant and demand entry to inspect their 2257 records without cause. It is important to note that this decision only protects members of the Free Speech Coalition, the plaintiff in the case. We suggest that all adult producers make sure their membership is in good standing, and if not, to join in order to take advantage of the protections.

"Of course, we entirely disagree with the court's holding that the regulations themselves are not prohibitively burdensome to producers under the First Amendment," she continued. "However, the court remanded some of the restrictions back to a lower court, including those that require business owners keep certain hours to make records available for inspection, and we're hopeful they will be overturned. Over the next few weeks, we will be examining the decision in more detail to determine if we should appeal it en banc."

The entire opinion of the Third Circuit in Free Speech Coalition, et al v. Attorney General of the United States can be found here.