Feds Seek Rehearing On Sixth Circuit 2257 Decision

CLEVELAND – The adult industry has cautiously embraced the ruling by the Sixth Circuit U.S. Court of Appeals, which late last year struck down 18 U.S.C. 2257, the federal recordkeeping and labeling law, as unconstitutional on its face – cautiously, because there was the likelihood that the U.S. Department of Justice (DOJ) would request that the original three-judge appeals panel rehear the case, or in the alternative, that the entire Sixth Circuit bench rehear the case "en banc."

Earlier this week, that eventually became reality – but at least one prominent First Amendment attorney finds the government's petition not only lacking, but possibly containing statements helpful to the adult industry's fight to get 2257 overturned on the federal level.

Take, for instance, the government's use of a phrase from the decision in American Library Assn. [ALA] v. Reno, which the government relies on to support the utility of 2257:

"By requiring proof of age for sexual performers at each stage of pornography production," the en banc petition reads, "the Act prevents the use of minors as sexual performers in an industry where the models, overwhelmingly, are young, and it thereby 'advance[s] the abatement of child pornography in fundamental ways'."

"Okay; so here, the government is saying that young models in the adult entertainment industry are young," analyzed First Amendment attorney Reed Lee. "Well, if you mean a 25-year-old is young, a 20-year-old is young, sure – but at the same time, they're talking about child pornography, where 'young' is supposed to mean 'under 18'. They use the word 'young' in order to have the best of both possible worlds, to have their cake and eat it too, because the Meese Commission said, when it comes to the adult entertainment industry, child pornography is not a problem, hasn't been a problem since the federal child pornography statutes were passed; that if it was a problem before that, it isn't anymore."

"Now, the real problem with child pornography is not in the commercial context; it's in the non-commercial underground: Pedophiles who produce it for their own satisfaction," Lee continued. "The government's trying to defend Sec. 2257 against the easiest of the issues that the Sixth Circuit panel raised by saying, 'Okay, it's restricted to commercial pornography.' But virtually no child pornography is commercial pornography in the sense that they're using the term, so that just increases the disconnect between the 2257 burdens and the government's objective in combating child pornography. They've never come to grips with the fact that nobody says that the government's interest in combating child pornography isn't significant, substantial, even compelling. What we say is that 2257 isn't narrowly tailored; that if you shoot at anything with four legs, hoping to hit a bear, all the other things with four legs have a legitimate complaint. That's called 'scattershot.'"

One of the government's primary arguments is that the Sixth Circuit took the wording of 2257 beyond their logical limit.

"Construing the age verification and recordkeeping provisions to apply to private couples who create explicit images of themselves for personal use in their own homes, the panel invalidated the Act on the ground that it is so overinclusive that it can no longer constitutionally be applied even to producers of commercial images for the pornography industry," the petition says, later adding, "It [the panel] also raises an exceptionally important question of federal law by first giving a new, expansive interpretation to an Act of Congress, and then proceeding to invalidate the Act on its face. The panel's reasoning is, we submit, fundamentally mistaken. Congress did not impose age verification and recordkeeping obligations for images created by private couples for personal use in their homes."

In fact, 2257 contains no such exclusion. The law says, in pertinent part, "Whoever produces any book, magazine, periodical, film, videotape, or other matter which (1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and (2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction."

(The actual text of the law has changed slightly since the passage of the Adam Walsh Act, but those changes have not yet been incorporated into the United States Code – and in any case, those changes do not significantly impact the meaning of the above quote.)

In the Connection Distributing case, the case at issue here, the question revolved around couples who produced sexually explicit images in their own homes and then sent them to Connection to be published in the company's swinger magazines – actions that clearly fall under the recordkeeping requirements of 2257. Moreover, Lee speculated on the situation of a married couple where the husband travels for long periods on business, and the wife makes a masturbation tape of herself and mails (or even emails) it to him for his private enjoyment – that too would implicate 2257's recordkeeping requirements!

The government petition also faults the Court for "adopt[ing] a new and highly expansive interpretation of the Act that neither party had urged" – referring to the supposedly non-commercial nature of private couples photographing themselves in their own homes – but according to Lee, that statement betrays a fundamental misunderstanding (or possibly deliberate dissembling) of how the federal judicial system works.

"The fact is that the statute tried, and the [Meese Commission] report, which is the basis for 2257, said, 'So long as the ink that's used to print the picture traveled in interstate commerce, 2257 applies'," Lee explained. "They didn't say, 'only in the context of a commercial operation,' so the government's plainly changing its tune. The government's trying to back off from the intended scope of 2257 in order to save some of it. Now, that's problematic enough, and the courts do have the power to say, 'Well, maybe some in Congress intended this broad application, but that would be unconstitutional, so we're going to read it at a constitutional level.' The government's real problem is, that doesn't solve the basic problem. If the Sixth Circuit does exactly what the government now says it should do – it didn't say it beforehand but now it says, 'Okay, restrict it to commercial production' – that still doesn't solve the basic Sixth Circuit problem."

"The basic Sixth Circuit problem, the government is ignoring because the government doesn't have a good answer for it, because Judge Buckley in the ALA case didn't have a proper analysis for it – and that is that Sec. 2257 burdens so much expression that is not child pornography, it is over-inclusive. The government has a legitimate, the government has a substantial, the government has a compelling interest in combating child pornography; granted. What the government can't do, even under intermediate scrutiny, is burden a whole lot of expression that doesn't implicate its interest in order to try, as a scattershot method, to pick up a few pieces of unprotected expression."

It's also troubling that the government's petition continually refers to 2257's requirements as an "objective age verification system" and how it "prevents the use of underage models by requiring a person who films and photographs people engaging in actual sexually explicit conduct ... to examine each performer's government-issued picture identification."

Trouble is, that's not true.

"There are some issues that the government is kind of skirting here," Lee said, "but they do raise it, and there's a problem, and that is, if the real problem that the government is aiming at is a Traci Lords situation – you know, we have a fairytale that's circulated over the years that 2257 was a reaction to Traci Lords; it plainly was not. We can show that the Meese Commission was working on that proposal before the Traci Lords scandal broke. But even if it was designed to address Traci Lords, it wouldn't have helped. Traci Lords had actual government-issued ID. Traci Lords didn't fool the producers; Traci Lords fooled the state of California. After that, she presented a valid ID. So 2257 would have had no impact on that situation. And the dirty little secret about the noises the government is making about combating a situation where the performers deceive the producers is, there's not a word in 2257 addressed to that."

"If the government wants to make it illegal for minors with fake ID to participate in pornography, we'll listen to that; that may make sense," Lee continued. "But threatening to send producers to jail for five years on a felony because they might be deceived by a minor is seriously misguided; it misses the government's legitimate interest. If there were a provision in there making it illegal for a minor to use a fake ID in order to appear in pornography, at least that would be addressing the issue. But they're making this up; it's an after-the-fact justification; it's grasping at a last straw."

Finally, the government argues, "the social costs of invalidating the statute are obvious; despite the documented fact that the sex industry caters to a preference for young models, the panel held that the Government can no longer require commercial pornography producers to verify that sexual performers depicted in images of actual sexually explicit conduct are adults." In so saying, the government deliberately ignores the purpose of federal child pornography statutes and the penalties they impose – but for Lee, it goes even deeper than that.

"The simple fact is, if 2257 were merely a requirement saying, 'check IDs and keep a record that you've checked the IDs,' we'd have no problem with that," he analyzed. "But what the government's position can't explain is Sec. (f)(4) [of 2257]. There's no way that, if this is just a rule saying 'check IDs, and you're in some kind of trouble if you don't check IDs,' there's no way the statute could prohibit the transmission of materials that don't have a disclosure statement. That's the real fraud. Twenty-two fifty-seven was not designed by people who wanted IDs checked; 2257 was designed by people who envisioned a vast federal sexualized recordkeeping scheme where the government could keep track of all provably-protected pornography and could send somebody to jail for five years for transferring anything that wasn't provably protected. That scheme is unconstitutional, and the government is finally getting around to backing off of that scheme. And when it does back off of that scheme, there are a whole bunch of features of that scheme that can't be squared with its new position. We aim to see that the court recognizes that."

But for Lee, almost every time the government makes an argument supporting 2257, it either contradicts some previous statement on the subject, or undermines what the law actually says – and he'd like to see some court take noticed of that.

"The government's grasping at what it can here for a very short term solution, and that is to try to rescue the statute," Lee stated. "But the problem is, these short term fixes, even if the government succeeds in doing that, even if they succeed in changing the ruling in this case, will actually complicate the government's problem in defending Sec. 2257 all along – and we said it time and time again, and people were pooh-poohing Jeffrey [Douglas] and I for saying it, but what this is, is a chess game. The more they say about 2257, and the more they have internal contradictions – for instance, one of the things we said was, Sec. 2257 was under-inclusive because it didn't reach large categories of child pornography; that is, where the sexual activity is simulated, or where it's merely lascivious display. Well, in 2006, Congress tried to fix that under-inclusiveness. Now the government's trying to go back to under-inclusiveness [by arguing that the statute doesn't include in-home hardcore photography]."

"We have a standard set of First Amendment tests," Lee summarized, "and all I ask is that, eventually, one court sit down and apply all of them at once. Now, the government is used to setting itself up as a constitutional moving target, but eventually it's got to take a final position, and eventually the courts will have to say – or maybe what the court will say is, 'Well, no position you can take will satisfy all of the tests,' which is actually what I believe the situation is, and which is actually what I think the Supreme Court should say, and then they have to withdraw the law."

The Free Speech Coalition has authorized its Legal and Government Affairs Committee to commission the preparation of an amicus brief in opposition to the government's petition for en banc review, so keep watching this site for further developments in this supremely important case.