CINCINNATI - As everyone not living in a cave knows already, a federal appeals court yesterday struck down 18 U.S.C. § 2257. Should everyone pop open champagne? Will members of the DOJ’s obscenity team be jumping off the Washington Monument? Not yet...but the result certainly is wonderful.
First, some basics – Federal Courts 101. There are three levels of federal courts. The trial courts are called United States district courts. There are nearly 100 districts, most of which are split into divisions, so there are literally thousands of federal district judges around the country. The loser of a case in a district court has a right to appeal to one of the United States Courts of Appeals – the country is divided into eleven “circuits”, plus the District of Columbia (plus a place called the Federal Circuit for patent appeals and such), and the appeal goes to the circuit in which the district court sits. And then, of course, the Supreme Court, which has the final word on everything, but the Supreme Court hears only those cases that the Court believes merits its attention.
Each court of appeals has many seats (which sometimes is higher than the number of judges because of vacancies), as few as six in the First Circuit (covering the Northeast), which isn’t so busy, up to 28 in the Ninth Circuit (covering the West Coast), which is overwhelmed. There also are senior judges, some of whom are more active than others. The appeals courts normally hear cases in panels of three judges. Two out of the three votes wins.
The court that tossed out 2257 yesterday is the United States Court of Appeals for the Sixth Circuit (the “Sixth Circuit”), which presides over Ohio (where the case originated), along with Michigan, Kentucky and Tennessee. The appeal was taken, as a matter of right, by Connection Distributing Co., along with the other plaintiffs, who all had lost at the district court level.
How final is the decision? To begin with, there is no right to any rehearing in the Sixth Circuit. Upon motion – and you can expect one – the losing party can ask for either of two kinds of rehearing, or both. It can ask the three-judge panel to reconsider what it did; and it can ask for en banc rehearing. En banc rehearing in the Sixth Circuit means rehearing by all of the active judges at once.
On a motion for a panel rehearing, the panel simply decides whether it wants to re-examine the case. As a rule, panels will not rethink their opinions unless the petitioning party points out something where they really missed the boat. They are rarely granted, especially in cases where the judges fought it out and wrote separate opinions (Most cases, there is only one opinion, written by one of the judges and announcing the decision of the court.). When panel rehearing is granted, usually a panel simply tweaks the opinion to correct some oversight. Far less frequently, a panel rewrites its opinion, and even less often a panel will order re-argument.
Motions for en banc rehearing are granted or denied based upon a vote of the judges in regular active service – in other words, senior-status judges do not vote. If a majority of them votes for en banc rehearing, the case is argued to the whole court. However, en banc consideration is rare – in the Sixth Circuit it will occur when the court thinks “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or the proceeding involves a question of exceptional importance.” This is rare, indeed.
The next step is the Supreme Court. As most everyone is aware, the Supreme Court decides most of its cases by simply deciding not to decide them. Remember, that word nobody can pronounce – “certiorari”. The Supreme Court is very stingy in granting certiorari – something like 4%. Once upon a time, the government had an absolute right to appeal to the Supreme Court where a federal statute was held unconstitutional by a court of appeals, but that was abolished in 1988. So, procedurally, the government is “throwing itself on the mercy of the court” from this point forward.
Turning to what the court did, this all begins with the proposition that courts of appeal decide cases like this based upon the version of the statute in place at the time the appeal is heard, even if the statute was different at trial. So, this decision includes the Adam Walsh Act, even though it had not been passed at the time of the trial court’s decision, but does not consider the proposed new regulations, because they presently are just that – proposed.
The opinion starts by doing a thorough but obvious bit of statutory construction. Looking at the statute, the regulations and the legislative history, the court found it clear that 2257 applies to anyone creating or otherwise producing qualifying depictions – commercial or not. “The statute by its plain terms makes no exception for photographs taken without a commercial purpose,” the court explained, and went to analyze its history and purpose, all of which supported that conclusion.
Next, the court shot down the government’s argument that 2257 regulated conduct, not speech, like the child pornography laws do. Simply put, this isn’t child pornography, the court said.
The reach of 2257, the court profoundly observed, “sweeps in a lot of protected speech,” well beyond what is legitimate. But where the court really gets it right is the burden of 2257 and, beautifully, it recognized the fact that a statute can be unconstitutional if it has to chilling of an effect on speech:
“To appreciate why speech would be chilled, consider the following. A couple wishes to take photographs of themselves engaging in sexual activity. To do so means compiling records, affixing statements, maintaining such records for at least five years, and opening their property up for visitation by government officials to inspect the records. It seems unlikely the couple would choose to speak when faced with such requirements, which if violated means being guilty of a felony punishable by up to five years in prison plus fines.”
It’s about time! The court recognized that 2257 is too burdensome, and did so without some of the evidence that the Free Speech Coalition is going to be able to muster.
The final bullet through the heart of the government’s argument comes where the court decides that facial invalidation is the appropriate remedy. That means it is invalid as to everyone – even those who could be legitimately regulated by such a statute.
Now, this is a 2-1 decision, with all three judges writing an opinion. So, in one sense, the concurring judge’s view of things is just as important as that of the judge announcing the decision. What the concurring opinion did was apply what is called “intermediate scrutiny” – that horrible concept that comes into play in all of the adult-business zoning and regulatory schemes. But the result is the same, because the concurring judge found that 2257 burdens substantially more speech than necessary, which will cause such a regulation to be unconstitutional.
The third judge agreed in part and disagreed in part, finding that 2257 could be rescued by eliminating the requirement that “secondary producers” perform all of the functions of primary producers. That would not be such a bad result, either.
What now? The bottom line is that, unless this decision is upended, 2257 is gone in Ohio, Michigan, Kentucky and Tennessee for everyone. Way back in the ’90s, the Court of Appeals for the District of Columbia Circuit upheld the statute, although the secondary producer thing was not really an issue.
What will the Department of Justice do? That is anybody’s guess, except you can count on petitions for rehearing and, failing that, a petition for certiorari in the Supreme Court. And fairly stated, en banc and Supreme Court review are more probable where a federal statute is held unconstitutional on its face.
Likely the DOJ won’t be doing any inspections in Ohio, Michigan, Kentucky or Tennessee until this is resolved. Whether inspections will stop altogether certainly will be the subject of some big-time internal debate in and between the DOJ and the FBI.
Failing that, certainly the DOJ will be asking Congress to attempt to remedy the problem. Remember, 2257 never has been seriously debated in Congress. In 1988, when it first was enacted, and 1990, when it was amended after it was held unconstitutional, it was rammed through Congress as a tack-on to some other huge bill. The Adam Walsh amendment was rammed through a Republican Congress, but obviously the subject of some lobbying, as can be seen by the concessions to Hollywood found in 2257A and the “lascivious exhibition” exception that is designed to apply to anyone but this industry.
Historically, the good guys have had very little luck getting Congress to do much good, regardless of who is in control. The most notable exception was that it backed off of the obscenity-forfeiture bill by in 1988 adding a proportionality requirement to the statute as it was ultimately enacted, only to have it removed in 2006 by the Adam Walsh Act.
Rehearing and certiorari petitions will consume probably until June. If they fail, you can count on the Republicans getting a bill in the hopper in time so that the Democrats will be faced with being taken to task for supporting child pornography if they vote against it. The best they will be able to do is try to table it until after the 2008 election. Then, we’ll see who wins what.
Finally, hearty congratulations to the author’s long-time and dear friend, J. Michael Murray of Cleveland. Mike is an outstanding advocate and a brilliant lawyer in general, and the result of his efforts in this case remind us all of that.
Clyde DeWitt is a Los Angeles and Las Vegas attorney, whose practice has been focused on adult entertainment since 1980. He can be reached through AVN’s offices, or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
