In a stunning blow to the privacy rights of swingers, and the First Amendment rights of publications, the U.S. Supreme Court has rejected an appeal by Connection Distributing Company, publisher of Connections magazine, to be exempt from the labeling and recordkeeping requirements of the Child Protection and Penalties Enhancement Act, which became embodied in law as 18 USC §2257.
On August 13, 1998, the Court of Appeals for the 6th Circuit vacated a Cleveland trial court's decision to grant Connection a preliminary injunction as to the requirements of §2257.
According to the appeals court's opinion in Connection Distributing v. Reno, the conflict at issue is the government's power to ban the visual depiction of minors engaged in sexual activity versus the ability of Connection's advertisers - typically, swinging adult singles and couples in their 30s, 40s and 50s - to maintain their anonymity when advertising for like-minded adults.
Connection editor Patti Thomas noted that when the magazine initially tried to comply with the recordkeeping requirements of §2257, its advertisers fled in droves, afraid that supplying IDs with their photos would open them to harassment if the information should ever be circulated more widely than Connection's staff.
The government countered, and the Sixth Circuit agreed, that the government's interest in making sure that no minors appeared in photos published in the magazine outweighed Connection's readers'/advertisers' privacy interests, even though, after examination of several magazine back issues, no government expert had been able to identify a single visual depiction of a minor.
The appeals court also agreed with the government's contention that requiring IDs from advertisers would not improperly "chill" those advertisers' free speech rights, since they were free to place their ads without photos. The court considered the ID requirement to be a "secondary effects regulation" of the speech, and compared the concept to the Supreme Court's analysis in Renton v. Playtime Theaters.
"The provisions are a reasonable attempt to prevent the use of minors in pornographic materials," the appeals court wrote. "By requiring that age verification records be submitted and maintained, the provisions do not prohibit the sexually explicit speech at issue or unduly burden the opportunity of Connection and its readers to engage in the expression."
The opinion contained just one mention of a similar case, Sundance Associates v. Reno, which was decided in Sundance's favor earlier in 1998:
"[Footnote 3] In Sundance Associates, Inc. v. Reno, 139 F.3d 804, 806-08 (10th Cir.1998), the Tenth Circuit struck down part of 28 C.F.R. § 75.1(c)(4)(iii) to the extent it requires record-keeping by producers who do not hire, manage, or arrange for the participation of the persons depicted. The court concluded that the regulations were impermissible because they were broader in scope than authorized by the Act. Id. We need not reach this issue in the instant case, however, because both parties acknowledge that Connection has made no such contention in this suit."
This footnote suggests that Connections may have a further cause of action on this subject, based on the Sundance case. However, Connection's attorney Michael Murray was not available for comment when contacted.
Look for a more complete analysis of this case in the July AVN.
