PHILADELPHIA, PA—As the lawsuit against the federal record-keeping and labeling law filed by Free Speech Coalition and 15 other plaintiffs heads back to the Third Circuit Court of Appeals, it's being given some help by the Pennsylvania branch of the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF), which notes that 645 of its 30,000 dues-paying members live in Pennsylvania.
At issue is 18 U.S.C. §§2257/2257A, which require all content depicting actual human beings engaged in sexually explicit conduct to bear labels indicating where the government-issued photo identity records of those human beings are stored, and require the producers of such content to keep those records in a specified manner and make them available for possible inspection by FBI inspectors at least 20 hours per week.
But the ACLU and EFF amici are taking a more nuanced approach to the lawsuit, and their brief in support of plaintiffs/appellants is mainly concerned with "protect[ing] the rights of the millions of ordinary Americans who create sexually explicit 'depictions' for personal non-commercial use that put them at risk of criminal liability under 18 U.S.C. §§ 2257 and 2257A."
"Our nation’s concept of liberty includes the right to engage in personal sexual expression without government intrusion or risk of criminal liability," the joint amicus brief begins. "Because it is so obvious that the Constitution forbids Congress from criminalizing personal sexual expression, even the government itself has urged this Court to construe the Statute to apply only to depictions that are created for commercial sale or trade. Unfortunately, however, the Statute is not so limited; it clearly applies as well to non-commercial personal expression. And as this Court already held when it reversed and remanded this case to the district court, the Statute cannot be saved by construing it narrowly when Congress chose instead to write it so broadly."
The brief goes on to explain how Judge Michael Baylson's ruling on the issues following last June's trial of the case is "flawed" and that "the court's findings of fact are at odds with the evidentiary record," as set forth in the Appellants' Brief, to which the parties here say they have "nothing to add."
What they do take issue with, though, are Judge Baylson's "improper" reliance on governmental assurances that it will not apply 2257 to non-commercial entities; his ruling that he need not decide whether 2257 is overbroad as applied to those non-commercial entities unless and until one of them brings a "declaratory judgment action" against the law, perhaps because that person was cited for violation of the statute; and his failure to conduct a proper analysis of whether the statute was sufficiently "narrowly tailored" to accomplish the government's stated purpose without infringing the free sexual speech rights of the appellants.
Regarding that last point, the amicus brief cites the recent Supreme Court decision in McCutcheon v. Federal Election Commission, wherein Chief Justice Roberts advised that in dealing with challenges to congressional legislation (like limits on campaign financing), the court must find "a fit that is not necessarily perfect, but reasonable; that represents not necessarily the best disposition but one whose scope is in proportion to the interest served, .... not necessarily the least restrictive means but ... a means narrowly tailored to achieve the desired objective." The brief goes on to note that considering how many ordinary citizens take sexy photos of themselves and their partners for their own pleasure, and/or "sext" those photos to each other or even third parties without any sort of commercial gain, there's no way the law is "narrowly tailored" if it sweeps those millions of citizens up in its tentacles.
"The Statute even applies to non-obscene depictions created for artistic, journalistic and educational purposes," the amicus brief notes.
The brief then goes on to examine the flaws in Judge Baylson's ruling in more detail. For example, regarding the assurances made by the government that it would not target ordinary citizens in enforcing 2257, and Judge Baylson's acceptance of those assurances, the amici recall that such reliance is exactly what the Third Circuit said should not be done when it remanded the case for trial.
Moreover, in light of the vast amount of information collected by government agencies (like the NSA) on the activities of all U.S. citizens, the amici ask the appeals court to look askance at the prosecutors' claim that the government "would have no conceivable way" of finding out about "private communications" and that "it would have no knowledge of those private communications in the first place," terming such argument a "straw man, and a poor one at that."
"Personal sexual communications take many forms that could be exposed to government scrutiny in a variety of ways," the amicus brief states. "Once a sexual 'depiction' is shared with a second person there is no guarantee that the depiction will remain private; it is out of the control of the person who initially produced it. And in light of recent revelations about its use of technological surveillance, the government cannot seriously contend that it has no access to 'sext' messages and other personal communications transmitted by cell phone through text messaging or other applications, or that it cannot discover, if it so desires, who is posting sexually explicit depictions on websites for purely personal purposes unconnected to any thought of financial gain."
The brief also notes that when government officials are in the middle of an investigation of one crime, "history shows" that law enforcement may charge suspected individuals with unrelated crimes—for example, 2257 violations—out of mere spite. The brief notes that when police suspected John Lawrence (of Lawrence v. Texas "fame") and Tyrone Garner of having homosexual relations, rather than attempting to catch them in the act for that "crime," they instead entered Lawrence's apartment on the pretext of investigating a possible "weapons disturbance"—a law almost never enforced in Texas. The brief also recalls that when police raided the house of Robert Stanley (of Stanley v. Georgia) and found none of the bookmaking materials they were searching for, they just busted him for "a rarely enforced Georgia law prohibiting possession of pornography." Therefore, "it is not the least bit far-fetched to imagine that federal agents who are frustrated in their search for illegal drugs or firearms, for example, might resort to charging someone instead with violating the Statute by 'sexting' a lascivious photo to his wife."
The brief also contains a long discussion of the utility of "facial" challenges, which "by their very nature invite the examination of potential overbroad applications that are not then before the court, i.e., conduct that has not yet been the subject of prosecution." The brief goes on to cite the case of Broaderick v. Oklahoma, whose opinion states in part, "[l]itigants ... are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression." [Emphasis added by amici]
The brief also mentions the embarrassment that would be caused if an ordinary suburban couple, for example, were forced to go into court to have sexts which they had exchanged between themselves deemed non-criminal under 2257 by means of the "declaratory judgment" procedure in which Judge Baylson had put so much faith.
It is just this overbreadth that allows the law to target ordinary citizens, and while the amici admit that such overbreadth might be excusable if it were written well enough to minimize such excesses, 2257 clearly isn't.
"It is one thing to forgive a statute’s overreach if it is tailored reasonably well, but because of the inherent imprecision of language and the impossibility of foreseeing every future situation, the statute inadvertently spills over into some impermissible applications," the brief explains. "It is something else, however, to 'give a break' to a statute that makes no effort to draw the lines that obviously should have been drawn. In the latter case, the Statute’s unreasonable overbreadth can be enough by itself to invalidate the Statute, without regard to counting the number of permissible and impermissible applications."
Though unmentioned in this brief, the above point applies not only to 2257's possible sweeping in of citizen sexters and the like, but also to the fact that commercial sexual depictions of myriad performers who could never be confused with minors are also subject to 2257's record-keeping and labeling requirements. The brief, though, settles for suggesting that Congress could rewrite the statute to make it clear that 2257's requirements apply only to commercial depictions.
But overinclusiveness isn't the only overbreadth problem with 2257.
"Not only does the Statute fail to draw an easily drawn line between depictions meant for commercial gain and those that are not intended to produce such gain, but with its sweeping language, the Statute does not even distinguish between erotic art and obscenity," the amici observe, noting that even the Supreme Court has carved out "obscenity" as the only erotic speech it deems worthy of prosecution—a distinction lost on the writers of 2257, which statute targets any erotic image, whether protected under the Miller test or not.
"Congress enacted the Statute as a way to neutralize the risk posed to children by the adult entertainment industry’s preference for 'young-looking' performers, but even if such a risk actually exists in the adult entertainment industry, it does not follow that journalists, educators and scholars pose a threat to children," the brief states, in keeping with its focus on non-commercial adult imagery. "Indeed, neither Congress nor any government agency has ever made a finding that sex educators or medical professionals specializing in the study or treatment of sex disorders have a youth bias that endangers children. Accordingly, the application of the Statute to such private individuals fails to further the goal of the Statute."
Of course, as AVN has previously pointed out, the statute doesn't even prevent minors from using authentic-looking photo IDs to enter the adult industry and make adult films, since it does not require producers to be expert in determining whether an ID is real or false.
The next section of the amicus brief points out the problem with the law's application to images "produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce," since it would be nearly impossible, in the modern day and age, to use materials which had not crossed state lines... or even oceans. Moreover, since it's the materials used that create culpability, merely taking such a photo with an iPhone or Nikon camera, even if it were never downloaded or sent anywhere creates liability simply because the materials used in taking the photo weren't all made within the state where the photographer lives.
"The real question is why the government should be intruding at all into this activity," the brief asks, at the conclusion of a section about 2257's effect on sexting. "What possible justification can there be to impose criminal liability on a couple who find themselves in two different locations and want to use 21st century technology to show each other the same parts of their anatomy that couples have always (since the dawn of civilization) been permitted to show to each other in person?"
The penultimate portion of the brief deals with social networking and tube sites, noting that, "On this issue, the government is two-faced. On the one hand, the government has said repeatedly in its briefs that the Statute should be construed to apply only to commercial depictions intended for sale or trade. On the other hand, the DOJ’s implementing regulations evince a clear intent to prosecute private, non-commercial users of social networking sites who fail to abide by the Statute’s notification and record-keeping requirements. Hence, at least according to the government’s regulations, social networkers who post a sexually explicit or 'lascivious' self-photo on-line must label it with their own home address for anyone to see, including their employers, friends, and family, thereby making them vulnerable to potential stalkers and harassers."
Similarly, the brief states, the statute applies to "a variety of professionals who create sexual images for their professional work but who have nothing to do with the adult entertainment industry," such as photographers supplying "lascivious" photos of a wife to her husband on Valentine's Day or some similar occasion; a journalist who uses blurred or pixelated photos to illustrate an article, probably not realizing that even blurred photos of sexual conduct are encompassed by 2257; writers of sex education textbooks or "how-to" manuals; academics who publish on sexual issues; bystanders who take nude photos of, for instance, the Nude Day protests in San Francisco; and even artists who use live models to create erotic paintings.
"Indeed, if read quite literally, the Statute would apply to Matisse or Picasso if he were alive today and drew a highly stylized, abstract picture of a couple who were actually making love," the brief charges.
"There is nothing narrow about this Statute," the amicus brfief concludes. "It covers a broad array of sexually explicit speech, and requires even private individuals who have produced images in the context of their own intimate relationships unintended for public distribution to (1) label those images with identifying information; (2) wait at home 20 hours a week in case the government should wish to drop by unannounced (or hire a third-party custodian), or (3) run the risk of a felony conviction and up to five years in prison. The ACLU urges the Court to reverse the judgment of the district court."
The amicus brief filed by the ACLU and EFF in support of the Free Speech appellants can be found here.
