ACLU Brief Supports Free Speech's 2257 Fight

WASHINGTON, D.C.—The American Civil Liberties Union, long an ally of the adult industry as far as First Amendment issues are concerned, has filed an amicus ("friend of the court") brief in Free Speech Coalition's bid to overturn 18 U.S.C. §§2257 and 2257A, the federal recordkeeping and labeling laws.

"The purpose of this brief," writes the ACLU's Mary Catherine Roper, with prominent Philadelphia area attorneys Fred T. Magaziner and Kristina C. Evans, "is to expose how the Statute affects the lives of the millions of adult Americans who create or enjoy sexual images as part of intimacy, in communicating with others, to celebrate beauty, or for a host of other reasons. The burdens that the Statute places on these expressions are not narrowly tailored to prevent child pornography."

The ACLU brief focuses mainly on the impermissible overbreadth of the statutes and the regulations developed to implement them.

"The Statute directly burdens adult sexual expression that is indisputably lawful," the brief's authors argue. "The Statute burdens both commercial expression and, of particular importance to the ACLU, non-commercial expression. The Statute infringes the rights of both those who wish to take pictures or make videos of actual or simulated adult sexual conduct and those who wish to look at such pictures and videos. The Statute unlawfully burdens expressions that are created or viewed for sexual enjoyment as well as expressions created for purposes of art, education or therapy. The Statute not only burdens lawful expression but also inhibits the right of adults to engage in the intimate conduct itself," which point the authors clarify in a footnote: "For instance, to the extent that the act of photographing or videotaping intimate conduct is a part of the sexual conduct itself, the Statute actively chills such intimate acts."[Emphasis in original]

Webcam women and POV shooters, take note!

The brief then lists a number of lawful situations—e.g., distributing religious tracts anonymously, displaying "Fuck the draft" on clothing, holding unsurveilled private conversations—where citizens have the right "to be left alone by the government," even though, as the authors recognize, "[t]he Attorney General and a majority of Congress (and for that matter, many Courts) may be offended by visual depictions of genitals, or of adults engaging in actual or simulated sex."

Personal privacy, free from government oversight, is a paramount point in the ACLU's argument.

"Even though Congress might disapprove of those who take pictures of their partners' genitalia," the authors observe, "Congress cannot require them to keep photo IDs on file for government inspection, any more than Congress can require those who demonstrate for disfavored causes to register with the government."

The subtext of that argument is enticing, since it links the creation of sexually explicit content with political advocacy—and as anyone who's followed government's frequent attempts to squelch sexual speech at the federal, state and local levels knows, censorship in 21st century America almost invariably begins with religious and conservative political interest groups pressing for legal and/or judicial action as part of their larger political agendas.

The authors also make an interesting point about 2257A which is generally overlooked by the adult industry, which is that the 2257A regulations only protect commercially distributed simulated sex products, or works featuring "lascivious exhibition of the genitals or pubic area," from direct government oversight (through use of letters filed by mainstream production companies with the Attorney General). All others who create works involving simulated sex or lascivious exhibitions—for example, amateur photographers or swingers—are required to follow the same onerous recordkeeping and labeling requirements of 2257 as they would if they were creating hardcore content.

Even worse, the ACLU brief points out that all sexually oriented images that are "produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce" are also subject to 2257 and 2257A recordkeeping, and "[s]ince every camera and camcorder has been shipped in interstate or foreign commerce, the Statute thus applies to all privately made photos and videos, even if they are never distributed to anyone."

Before discussing the statute, the ACLU brief makes clear that it is the law itself, rather than the Justice Department's lengthy preamble to it—which takes up roughly four-fifths of the law's Federal Register posting—that must be assumed to be controlling, and that whatever caveats or exemptions are contained in the preamble should play no part in the Court's examination of the law. Or as the brief puts it, "The Government cannot stave off a challenge to an overbroad statute, however, by issuing regulations that purport to narrow its scope ... the Statute must be determined on the basis of what the Statute actually says, not what the DOJ might wish it said." The brief then goes on to point out several instances where the preamble makes claims that are inconsistent with statutory language.

One distinction between the preamble and the statute which the ACLU finds particularly important is the preamble's claim that 2257 and 2257A apply only to "pornography intended for sale or trade." The ACLU references users of social networking sites such as Craigslist, who post explicit photos of themselves with their ads, may run afoul of 2257, as might contributors of actual or simulated sexual videos to YouTube and other tube sites.

"While it is commendable that the DOJ has apparently never prosecuted a husband and wife who created a sex video for their own pleasure," the authors observe, "or a sex researcher who filmed couples making love, or—so far—an individual who posted an explicit photo or video on a web journal that she shares with her friends, 'the mere fact that an agency does not currently intend to apply a statute in an unconstitutional manner cannot have the effect of an explicit limiting construction.'... The statute sweeps within its scope millions of people whose conduct is completely unrelated to any concerns about the sexual exploitation of children—both people who for sexual enjoyment want to make or look at videos of actual or simulated sex or pictures of naked people, and people who for purposes unrelated to sexual enjoyment wish to make or look at such pictures."

But as the ACLU brief points out, it's not only the producers of sexual content who suffer from 2257; it's also those who want to view or "use" that content who are affected.

Quoting from the Third Circuit decision in the ACLU's own case against the Child Online Protection Act (COPA), the brief notes, "A statute that effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another... is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." [Emphasis in original]

The brief then goes on to point out a number of instances where ordinary citizens might fall afoul of the 2257 and 2257A regulations, such as couples filming themselves, people who post photos on social networking sites, photos produced with a non-sexual purpose such as for journalism, education, therapy or art, and later notes that since all of those actions may be swept up in a 2257 or 2257A prosecution, the statute intrudes on the "private intimate conduct of millions of ordinary Americans."

"The Statute does exactly what the courts have held the government cannot do—intrude into the bedrooms of ordinary Americans," the brief's authors say. "The Statute makes it a felony to fail to comply with the recordkeeping and labeling requirements, even if the 'producer' is a husband videotaping himself and his spouse in their own bedroom."

Finally, the brief also points out that 2257 and 2257A adversely impact all Americans' rights to speak anonymously by forcing them not only to keep identification records, but to label their works, thus disclosing the name and address of the works' producer.

"A couple who might otherwise wish to hire plaintiff Michael Barone to take pictures of their love-making, for example, may well not feel free to do so if Barone is required to keep their photo IDs on file and available for government inspection," the brief notes.

In summary, the ACLU amicus brief is an excellent supplement to the original complaint filed by Free Speech Coalition and 17 other plaintiffs—and it won't be the last. Check back here for AVN's analysis of a similar amicus brief from the Electronic Frontier Foundation.