Plaintiffs' Post-Trial Brief Lays Out Arguments for Striking 2257

PHILADELPHIA, PA—In the post-trial brief filed this morning by the plaintiffs in the lawsuit against the federal recordkeeping and labeling law(s), 18 U.S.C. §§2257 and 2257A (hereafter just "2257"), after getting through the obligatory table of contents and table of authorities (a list of prior court decisions and portions of the 2257 laws themselves and their regulations referred to in the brief), plaintiff attorneys J. Michael Murray and Lorraine Baumgardner dive right into the meat of one of their arguments: That 2257 sweeps in far more material than can be justified by any government interest in protecting children from appearing in sexually explicit content.

Referring to the definition of "actual sexually explicit conduct" found in 18 U.S.C. §2256, plaintiffs note that 2257 therefore applies to "any image that depicts actual sexual acts, bestiality, masturbation, sadistic or masochistic abuse, or the lascivious exhibition of the genitals or pubic area," with "lascivious" having been interpreted to include "any frontal nude image of a person in what might otherwise be called an 'erotic' pose," as well as even the children for whom Stephen Knox was found guilty in 1994 of creating child porn by videotaping them while clothed, but focusing on their genital areas. To say the least, that's one hell of a sweep.

But it gets worse when one adds, as Congress did, 2257A, which requires the same recordkeeping and labeling for depictions of simulated sexual conduct, where performers don't actually have sex but look as if they are—and plaintiffs remind the court that, "The Department of Justice has rejected the notion that simulated sexual images must include nudity; rather, it determined that 'a visual depiction of simulated sexually explicit conduct even if no nudity is present' triggers 18 U.S.C. § 2257A."

Got that? Just about any human sexual activity, actual or simulated, clothed or nude, can trigger 2257 recordkeeping. Now that's overinclusiveness!

And as for who's covered by the requirements? As 2257 says, it's "Whoever produces" a sexual image as defined above, and in a prior hearing, the Third Circuit Court of Appeals had previously rejected the government's suggestion that the Justice Department could limit that vast number of "producers" by confining the material covered to just what is "intended for sale or trade." That means that any average Joe or Jane Citizen could be required to keep government-issued photo ID records of those appearing in the content, cross-reference those records, apply labels to the material and be available for FBI inspection 20 hours per week for seven years just for shooting photos or videos of themselves cavorting in their own bedroom—or merely posing seductively in front of the fireplace.

What's worse, plaintiffs note, is that failure to follow 2257's dictates is what is known in legal terms as a "strict liability offense," meaning it doesn't matter if the person meant to follow 2257 exactly but failed to do so, or even if the "producer" has never even heard of 2257—failure to comply can mean anywhere from two years to as much as ten years in federal prison!

Another important point plaintiffs make regards the inspection process itself, which allows anyone certified as an "inspector" to enter a producer's premises—often an office building, but it could even mean his/her house, garage or storage unit—find the 2257 records and inspect them for compliance with the law, copy those records, take photos (or video) of the records and the area where they're maintained—and even "seize any evidence of the commission of any felony," no matter if such felony has nothing to do with the federal recordkeeping! And they can do it all without having a search warrant issued by a judge based on "probable cause" to believe a crime has been committed.

Plaintiffs' brief also lists a number of 2257 violations which FBI inspectors found in the 29 inspections they did in 2006-7 and referred to the Justice Department for possible prosecution. Such violations included "(1) failure to maintain an adequate or up-to-date cross-reference system; (2) failure to maintain the records in alphabetical order; (3) failure to maintain an identification document of sufficient legibility; (4) failure to maintain an identification document on which the date of birth was readily determined (document used Buddhist calendar); (5) failure to display the 2257 compliance statement on a website for a sufficient duration to be read by an average viewer; (6) failure to list the apartment number of the producer’s condominium in the address listed in the 2257 compliance statement; and (7) failure to give notice of the hours when the records were available for inspection when the producer did not maintain at least 20 normal business hours." With a list like that, producers have to ask themselves, "Is there any chance that if my own records were inspected today, the inspectors wouldn't find one or more of the above-listed (incredibly trivial) violations?"

Or as FSC's star witness, attorney Jeffrey Douglas, put it, "Perfection is the minimum standard to avoid committing a felony."

(In light of that, producers might consider donating to the fund FSC has set up to pay for this lawsuit.)

The brief next deals with the burdens imposed on the plaintiffs in attempting to comply with 2257's requirements—but that section begins by noting that not only do Free Speech Coalition members "condemn child pornography" and "are dedicated to its eradication, offering rewards for tips used in successfully prosecuting it," but even before 2257 was put into effect, producers both checked performers' photo IDs and obtained model releases from them—and that thanks to this practice, there were only a "handful" of performers who were minors but yet were able to evade detection using fraudulently-obtained "real" government-issued identification documents. (It remains notable that if a producer followed all of 2257's rules in dealing with those fraudulent IDs, he/she would not be liable for any violations of 2257—but as the brief notes, they could still be prosecuted under child pornography laws, and would therefore, at great expense, have to recall and destroy any material that contained an underage performer, give refunds or credit to anyone who purchased the material, and have to deal with the lack of trust that retailers would have in deciding whether to stock future releases from that same producer.)

The brief then lists all of the difficulties that, according to Douglas' testimony, producers—particularly "secondary producers"—would experience trying to comply with 2257, where a retailer or distributor, say, might have to deal with tens if not hundreds of thousands of redundant records (if they can even get those records from the primary producers), and also how third-party recordkeepers may not help because liability for any filing or cross-referencing error committed by such servives would be borne by the producer.

The brief then deals with each of the plaintiffs who testified during the trial, and the difficulties each has faced or would face in trying to comply with the 2257 law. Among these are the trade-off Nina Hartley takes for wanting to keep her home address, where she keeps her records, from public disclosure, so she uses a third-party recordkeeper that might commit an error, exposing Hartley to felony charges; the chilling effect Tom Hymes has suffered in avoiding having to put 2257-triggering images on his website; Barbara Alpers' difficulty in obtaining photo IDs from the elderly couples she photographs, and from the gay men on Fire Island engaging in anonymous sex that she wants to shoot; Barbara Nitke's similar difficulties in shooting BDSM participants in their homes, and in wanting to publish sexually explicit photos from the '80s and earlier, which publication now would trigger the necessity (and impossibility) to obtain photo IDs from those subjects; David Steinberg's inability to put 2257 labels on the hundreds of proof-prints he produces from each of his photo shoots; and David Levingston's worry than any of his photographs taken since the law changed in 2009 might be viewed as depicting "lascivious exhibitions," thus subjecting him also to 2257 recordkeeping and labeling... and invasive searches of his home where his records are kept.

Regarding the sex-educator plaintiffs, the plaintiffs' brief describes how Dr. Carol Queen is unable to get IDs for the sexually-explicit parts of images she uses in her collages, which she exhibits in art galleries, as well as her difficulties dealing with reporters who want to cover the sexually-explicit displays at the Center for Sex and Culture's (CSC) yearly "Masturbate-a-thons," as well as her inability to post the photos taken by amateur erotic photographers attending CSC's photo club. The brief also talks about the website created by educators Betty Dodson and Carlin Ross was forced to remove its "genital art gallery" which the pair used to help clients get over feelings of inferiority they felt about their own genitals' appearance. The law also impairs their ability to create instructional videos that contain explicit conduct.

Finally, the brief describes the difficulties faced by sex-education-video producers and distributors Sinclair Institute, which not only has to keep 2257 records for the (clearly adult) performers it uses in its videos, but on all the DVDs it offers for sale from other producers. It also notes that Sinclair produces a number of catalogs each year which feature box covers from the movies it sells—and for each of which image 2257 records must also be kept.

With all that as background, the brief then moves on to a discussion of the arguments plaintiffs have raised regarding 2257. One such argument is the fact that 2257 is not "narrowly tailored" to further the government's interests, as required by prior Supreme Court decisions, with Murray and Baumgardner noting that even the government's own expert, Dr. Gail Dines, had admitted that not more than one-third of all the explicit images she's seen contain people who could possibly be confused as minors, while plaintiff expert Dr. Daniel Linz put the figure of those "clearly adult" even higher. The brief also notes that defense expert Dr. Francis Biro had stated that generally speaking, no one below the age of 13 could be confused as an adult, nor most children aged 14, and that no one over 25 is likely to be confused as a minor—which means that at least 59 percent of the U.S. population could be unnecessarily burdened by 2257's recordkeeping requirements. Moreover, statistics provided by government paralegal Adriana Vecchio in a "summary chart" revealed that between 56 and 80 percent of the models/actors used by content producers Nina Hartley, Sinclair Institute, Betty Dodson/Carlin Ross, Barbara Nitke and David Levingston—as well as non-plaintiff Vivid Video—could not possibly be mistaken for minors, allowing Murray and Baumgardner to argue that at least as applied to those plaintiffs, 2257 is a tremendous overreach. Statistics provided by other plaintiffs which were not included in Vecchio's chart show a similar preponderance of older performers.

The brief also notes that in keeping with the Third Circuit's statement that "[I]f one of the Plaintiffs employs performers that no reasonable person could conclude were minors, then that plaintiff may be able to demonstrate that the Statutes burden substantially more of that plaintiffs’ speech than is necessary to protect children from exploitation," and that "if any of the Plaintiffs produces depictions of predominantly youthful-looking performers, then the Statutes may be narrowly tailored as to those Plaintiffs," that in fact, "None of the Plaintiffs produced depictions of 'predominantly youthful-looking performers,' which is the only circumstance identified by the Third Circuit in which the statutes might be considered narrowly tailored." [Emphasis in original]

The plaintiffs' brief then gets to a point that, by itself, should ensure that 2257 is struck down as unconstitutional: The reversal of the presumption of innocence.

"Plaintiffs [Hartley] and Nitke explained that apart from the burdens imposed on them by the statutes, they found it particularly objectionable that the statutes presume they will produce child pornography absent a criminal statute requiring that they check the photo identification of everyone depicted in their expression," the brief states. "[Hartley] observed that the law essentially assumes that her expression is criminal and requires her to prove that it is not.

"They make an important point," the brief continues. "The original statute was struck down for creating an unconstitutional presumption. The current statutes create an equally unconstitutional, if not more invidious one: they presume that Plaintiffs’ expression is unprotected and require Plaintiffs to prove that it is not, by collecting proof of age of their subjects. The statutes effectively and definitively reverse the presumption that the First Amendment confers on all expression."

At this point, the brief expands on the concept that 2257 and 2257A "burden a substantial amount of expression in which the persons depicted are obviously adults." This argument includes not only the previously-stated facts that the vast majority of the content produced by plaintiffs is clearly made with people who are unmistakably adults, it notes that the phrase which begins the text of 2257, "Whoever produces," sweeps in far more content than just adult videos and Web content. Mentioned in the brief are adults who photograph or film their own sexual acts (or have them photographed/filmed by others, including some plaintiffs here) purely for their own pleasure and possibly the pleasure of other adults; postings to social networking sites like Facebook, Twitter and Instagram; the use of Skype to transmit sexual imagery between consenting adults; and the use of sexting to transmit sexually-explicit content, which two plaintiff witnesses testified is widespread among young adults today—and even, according to one article published in AARP's magazine "among the 50-plus set."

One particular paragraph in this section is particularly interesting: "The unclassified reports of FBI employee misconduct leaked to CNN reflect that employees of the FBI have been disciplined for sending nude photos of themselves via cell phone," which cites an article entered as a plaintiffs' exhibit, "FBI Sexting: Leaked Disciplinary Report Details Bureau Employees Behaving Badly,"  which quotes "FBI Assistant Director Will as acknowledging a 'rash of sexting' among FBI employees."

The brief sums up part of the problem as follows: "So when Jane Doe creates a sexually explicit video message to send to her husband on her cell phone or as an attachment to an email or to upload as a personal message to an adult website, she must first inspect her own driver's license to verify that she is an adult. She must then make a copy of her driver's license, create a record listing her maiden name and all other names she uses, and a record of the 'date of the production' of her video message. Before sending her message, Jane must 'affix' a statement to it, appearing within one minute from the start of her video message and before 'the opening scene,' which lists the address (it cannot be a P.O. Box) where the copy of her driver’s license and other required records are located—presumably her home. The affixed statement must be of sufficient duration and size to be capable of being read by the average viewer."

This section goes on to ponder what Jane must do if she posts her message to an adult social networking site, which would require her to also post her home address in the 2257 label—and speculates that if a networking service like Facebook allows that content to appear on a page, "it operates as a secondary producer–since it did not actually produce the imagery itself. Title 28 C.F.R. §75.1(c)(2) defines 'secondary producer' to include persons who 'otherwise manage[] the sexually explicit content of a computer site or service' that contains a sexually explicit image." However, the brief goes on to note that websites have successfully argued that they do not "manage" their members content, but that only means that the onus remains on Jane Doe to comply with all of 2257's requirements.

"Moreover, Jane must keep a copy of her driver’s license, record of all the names she uses, and date of production, together with a copy of her video message. She must segregate these records from any other records and prepare an index of them by legal name, aliases, and title of the depiction," the brief continues. "Since Jane has created her message for her purely personal use and to share with other like-minded adults and is not in a 'business relating to producing a depiction of actual sexually explicit conduct,' she must send a notice to the FBI, advising it of the hours that her records are available for inspection at her home, which in no case may be less than 20-hours per week. If the FBI arrives at her doorstep to inspect the records, Jane must permit the inspection or face criminal prosecution for a felony." Of course, it's unlikely that Jane Doe has even heard of 2257, nor even knows all of its requirements that she is responsible to comply with!

Similarly, many photographers, videographers and journalists may never have heard of 2257, but if their work strays into areas like glamour photography or employs a subject whose body is posed in a manner that someone might consider "lascivious," they too would be subject to 2257 or 2257A's requirements.

"Try as it might," the brief argues, "the government simply cannot avoid the fact that an enormous body of expression with absolutely no connection to child pornography falls under and is ensnared by the statutes' net."

Finally, the brief deals with plaintiffs' Fourth Amendment arguments, that the carte blanche given to FBI inspectors to invade business offices, homes and anywhere else 2257 records are kept amounts to a "search," and as such, under any other similar circumstance, would require that those seeking to inspect a business's or person's records obtain a search warrant signed by a judge and based on "probable cause" to believe that a crime has been committed—which is another subtle reminder that one of the main problems with the law is that it assumes that adult producers (and anyone else affected by the law) are child pornographers, guilty until they can prove themselves innocent.

In support of their argument, Murray and Baumgardner cite the case of United States v. Jones, where the government surreptitiously installed a GPS tracking device on a Jeep owned by the defendant's wife, and that the Supreme Court struck down this intrusion as a violation of the defendant's privacy rights. The plaintiff attorneys argue that in 28 of the 29 inspections, the government inspectors "occupied and intruded upon private premises and searched through private records for the purpose of obtaining information—all without a warrant or probable cause. They entered residences and private areas of businesses to which the public did not have access, took photographs, and occupied the premises for hours at a time. They examined records, took possession of them, and made copies," all in violation of the Supreme Court's edict in Jones.

Similarly, the brief, which describes in detail how the 2257 inspections were performed, cites Katz v. United States, arguing that the inspections also violated the inspected persons'/businesses' "reasonable expectation of privacy."

Finally, as regards the privacy issue, the attorneys argue the "administrative search exception," which allows the search of some records of industries that are "pervasively regulated" by the government, does not apply to plaintiffs—and notes that it is the government which must bear the burden of proof that a 2257 inspection meets that exception. The brief also notes that despite government claims that plaintiffs' Fourth Amendment arguments are not "ripe for review," in fact, the Third Circuit, in remanding the case to Judge Baylson, rejected that very issue.

"Any future inspections will have to be at least as intrusive as the inspections that were conducted under the current regulation's predecessor, for the regulation specifically controls how the inspections are to be conducted and mandates that they be carried out in the same way," plaintiffs argue. "It matters not that the Attorney General has no current inspection program in place. Defendant is obligated to enforce 18 U.S.C. §§ 2257, 2257A and their implementing regulations... Plaintiffs, of course, have no choice but to continue to comply with the law. The issue is therefore ripe for adjudication."

The entire post-trial brief filed by the plaintiffs can be found here.

Check back with tomorrow for our analysis of the government's post-trial brief.