PHILADELPHIA, Pa.—On Friday, attorneys for both the plaintiffs and the government filed their briefs containing further arguments either supporting or against various elements of U.S. District Judge Michael Baylson's decision largely supporting the continued existence of the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A (lollectively, "2257"), as requested by the Third Circuit Court of Appeals, which is considering the appeal for the second time.
The question this time seems to be largely whether the U.S. Supreme Court's recent decision in Reed v. Town of Gilbert should control various aspects of the Third Circuit's consideration—specifically, what level of scrutiny should the appellate court apply to the content-based restrictions embodied in 2257—or whether, as the government has argued, the standard for review should be the high court's three-decades old "secondary effects" case, City of Renton v. Playtime Theatres.
Clearly, plaintiffs' attorneys J. Michael Murray and Lorraine R. Baumgardner have a difficult time understanding how the government thinks Renton should apply to the instant case, since the main question in Renton was restricted to what criteria the city could use in deciding where theaters that show sexually explicit content could be located—and even though the earlier appeals decision began by referencing another zoning case, Young v. American Mini Theatres, which itself lists Renton as one of its forebears.
The attorneys attempt to trace the evolution of the original Renton doctrine through its various refinements in cases like City of Los Angeles v. Alameda Books, but ultimately, the plaintiffs argue that Renton is concerned more with structures (like movie theaters) than speech (the content shown in those theaters), though it might appear otherwise.
But in fact, "Renton’s secondary-effects doctrine cannot be divorced from the context in which it arose—namely, the exercise of a municipality’s zoning power to restrict the location of brick and mortar businesses disseminating sexually explicit expression that were associated with crime and blight—'adverse secondary effects'—on their surrounding communities," the plaintiffs argue. "It was in that context that the Court determined Renton’s and Los Angeles’s zoning regulations of adult uses, aimed at the adverse secondary effects of crime and blight, could be reviewed under intermediate, rather than strict scrutiny.
"That premise has no application here," the attorneys continue. "18 U.S.C. §§2257, 2257A regulate constitutionally protected sexually explicit expression depicting adults in all manner of genres, including artistic, journalistic, educational, and private expression. Indeed, this is a First Amendment case precisely because the statutes and regulations burden constitutionally protected images of adults. For the Renton adverse secondary-effects theory to be even analogous, (let alone applicable), it would be necessary to conclude that constitutionally protected expression containing sexual images of adults causes the adverse secondary effect of unprotected child pornography, which, by definition, it does not. Protected expression does not cause unprotected expression."
The latter, though, is exactly what the government is arguing, and indeed, one of the final sections of its brief is titled, "The sexual exploitation of minors is a 'secondary effect' of depicting the sexual activity of real people."
The plaintiffs also note that both the government and the Third Circuit based their earlier arguments and decision on the supposed "content-neutral justification" that as long as the government has a "benign motive" and a "lack of animus towards the ideas contained in the regulated speech" in suppressing/regulating that speech, it's okay to call that method "content-neutral."
However, "It is those justifications that the Court in Reed has now rejected," adding that the Supreme Court in Reed ruled that, "[T]he United States [who appeared as Amicus Curiae] misunderstand[s] our decision in Ward [v. Rock Against Racism] as suggesting that a government’s purpose is relevant even when a law is content based on its face... [A]n innocuous justification cannot transform a facially content-based law into one that is content neutral." The plaintiffs add, "The Supreme Court has confined application of the secondary-effects doctrine to local regulation of adult bookstores and theaters, and nude dancing in nightclubs. It has never applied that theory to any other regulation of sexually-oriented speech... even when the law had as its benign purpose, the protection of children," citing in part the decision in Ashcroft v. Free Speech Coalition.
The plaintiffs further argue that in order to regulate adult sexual speech via 2257, the Third Circuit would have to rule in denial of the Supreme Court's dictum in Alameda Books that, "a city, in support of its claim that a zoning ordinance reduces adverse secondary effects of adult uses, must come forward with evidence that is reasonably believed to be relevant for demonstrating a connection between the speech being regulated and harmful secondary effects"—a claim that cannot use "shoddy data or reasoning" and which evidence "must fairly support the municipality's rationale for its ordinance." This, of course, the government cannot do, and according to the plaintiffs' brief, has not done.
Interestingly, this very argument has implications far beyond the instant case.
"Moreover, given the clear and unqualified holding in Reed, Renton no longer survives, in any event," the Plaintiffs argue in a section entitled "Renton Does Not Survive Reed." "The Court’s holding in Reed was straight-forward and unqualified: content-based regulations of speech are subject to strict scrutiny, regardless of any content-neutral justification they may have. Justice Kagan urged the Court to relax the application of its holding—specifically citing Renton as an example of authority applying intermediate scrutiny to content-based regulations that should be left intact. But the majority of the Court declined to do so."
Indeed, if the Third Circuit accepts this incontrovertible argument, that could mean the beginning of the end for "secondary-effects" based zoning ordinances—but that's a topic for some future article.
For its part, the government spends its entire brief attempting to justify applying "secondary effects" to the making of sexually explicit adult content.
"The D.C. Circuit in [American Library Assn. v. Reno, one of the original 2257 cases from 1994] held that Section 2257 is subject to intermediate scrutiny under Renton as a regulation of the 'secondary effects' of sexually explicit imagery," the government's brief argues. "The court determined that '[t]here can be no question but that Congress’s sole purpose in adopting section 2257 was to address what the Attorney General’s Commission on Pornography found to be an important deficiency in the existing child protection laws,' the lack of any method for determining the age of young-looking people shown in images depicting sexual conduct."
The government's problem, of course, is that just because Congress passes a law doesn't necessarily mean that that law survives constitutional scrutiny—such as the scrutiny the Supreme Court applied in Reed. And as AVN has shown several times, 2257 does not prevent minors from appearing in sexually explicit content, since a minor with a good-looking fake (or a fraudulent) ID can still appear in adult productions, but the law specifically exempts a producer who acts in good faith in employing such a person, and keeps a copy of that fake/fraudulent ID according to 2257 requirements, from prosecution under that law.
Still, the government, in its brief, has mustered every argument it can find—even going back to the 1988 case of Boos v. Barry, regarding protests at foreign embassies on American soil—to justify its position on the "secondary effects" of adult porn.
"The D.C. Circuit was correct to characterize Section 2257 as a 'secondary effects' statute under Renton," the government brief claims. "In cases since Renton, the Supreme Court has defined the 'secondary effects' of speech in large part by distinguishing them from 'primary effects.' The primary effects of speech are the effects of the message itself upon listeners... The 'secondary effects' framework, by contrast, governs when regulations 'apply to a particular category of speech because the regulatory targets happen to be associated with that type of speech.' This Court has thus explained that 'secondary effects' analysis applies when regulation targets 'conduct that is associated with certain types of protected expression (but is not the direct result of the expression’s content.)'"
Hmmm... would that be like the Town of Gilbert's claim that the words on the directional signs at issue in Reed weren't offensive in themselves; it's just that the signs were placed in such a way that drivers might be distracted and cause accidents, a "secondary effect" of their placement? Funny thing: The Supreme Court, in 2015, didn't buy that argument.
"Here, the government has shown that requiring age verification and recordkeeping for sexual performers will promote the profound public interest in preventing pornographers from using minors as sexual performers," the government brief claims. "The trial record was replete with evidence that images showing young sexual performers are very common; that young people are depicted in all genres of pornography; and that without an age verification system, it is very difficult to determine, even approximately, a sexual performer’s age. In this factual context, age verification for sexual performers is the 'only way to ensure that [Congress’s] existing ban on child pornography c[an] be meaningfully enforced.'"
Of course, there is just one problem with that: In the 29 inspections the FBI did conduct under 2257, they did not find a single instance of a minor appearing in any of the videos/web content of the companies inspected. But the point is, even if they had found such a person, as long as the company kept a copy of that performer's ID, filed it in the prescribed manner, and the ID wasn't obviously fake, that producer could not be prosecuted for a 2257 violation!
So what kept those minors out of the content generated by the inspected companies? Why, the existing child pornography laws, of course!
But then, the government actually tries to justify its "secondary effects" doctrine as it applies to adult content production:
"FSC in its rehearing reply also suggests that child pornography cannot be a 'secondary effect' of producing images showing the sexual activity of real people because, in its view, there is no causal relationship between the content of the imagery and the harm addressed," the government's brief claims. "But this contention is manifestly incorrect. The legislative history of the Statutes demonstrates that the production of sexually explicit images, and demand for those images, lead to the exploitation of minors, and that the enforcement of legal restrictions on child pornography is impaired when the age of the performers cannot be documented. There is thus a direct relationship between the kind of expression covered by the Statutes and the harmful secondary effect at which the Statutes are directed."
So, "the production of sexually explicit images, and demand for those images, lead to the exploitation of minors"????? Really? Exactly how is that, when legitimate adult producers (as opposed to the fly-by-night child pornographers the government has been highly successful in prosecuting), fearful of being accused of creating (and being prosecuted for) child porn, have always (in the modern era, at least) been careful to check the IDs of everyone who appears in their content? If minors aren't appearing in legitimate adult producers' content, how can they possibly be being "exploited"?
And, perhaps most importantly, if the FBI did detect a minor appearing in an adult film, the producer of that film would still be immune from prosecution under 2257 as long as he/she A) kept a copy of the ID; B) the ID wasn't obviously fake; and C) he/she kept that ID in files in the (fairly costly) manner prescribed by the 2257 regulations!
The full Plaintiffs'/Appellants' Supplemental Brief can be found here. The full Government's Supplemental Brief can be found here.
Brief argument in the above matter will be held before the Third Circuit panel that originally decided the case at the Thomas Byrne Federal Courthouse in Philadelphia on December 9.
