First Amendment attorney J. Michael Murray was happy with Judge Walker D. Miller's decision in Free Speech Coalition v. Gonzales – so happy that he spent a frantic couple of days during the week between Christmas and New Year's writing a motion based on it in his own long-running case, Connection Distributing Co. v. Gonzales (formerly v. Reno).
As readers will recall, Connection Distributing Co. publishes magazines for swingers, which the Sixth Circuit U.S. Court of Appeals described as "an alternative social and sexual lifestyle comprised mostly of mature adults who believe in sexual freedom and do not believe in sexual monogamy." Ther Connection magazines reflect the sexual freedom of its readers/advertisers, who often submit sexually explicit photos for publication in order to attract other like-minded adults.
Trouble is, sexually explicit pictures trigger the Child Protection Restoration and Penalties Enhancement Act of 1990, better known as 18 U.S.C. §2257, the recordkeeping and labeling law. Now, since 2257 records are supposed to guard against the appearance of minors in images of sexually explicit conduct, and since even the court recognized that the people submitting photos to Connection were "mostly ... mature adults," one might think an exemption could be found for the Connection images, especially since swingers value their privacy and anonymity and many balk at disclosing their real names and addresses to, among others, the government. So far, the Sixth Circuit has ruled that these 30-, 40- and 50-year-olds must comply with 2257.
But Judge Miller's ruling exempting "secondary producers" from the recordkeeping requirements of 2257 has breathed new life into the Connection case, and Murrary was ready with his argument.
"Specifically, the court found that pursuant to Sundance Assoc., Inc. v. Reno, the statutory record keeping requirements could not be imposed on those secondary producers who merely distribute sexually explicit expression or who do not participate in activity that involves 'hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted'," Murray argued in a Memorandum accompanying his Motion For Leave To File Supplemental Authority In Support Of Plaintiffs’ Motion For Preliminary Injunction, filed on Dec. 30. [Citations removed]
"Throughout this litigation, plaintiffs have consistently maintained that the record keeping requirements were designed to ameliorate the problem in distinguishing minors from adults in sexually explicit expression featuring youthful looking performers," Murray noted. "The Colorado District Court agreed with this very premise ... When applied to the genre at issue here, however – swingers magazines depicting adults in their 30s, 40s and 50s – the statute and its implementing regulations are not narrowly tailored and, in fact, suppress a vast quantity of constitutionally protected speech."
Judge Miller's decision also stated that Free Speech Coalition and the other plaintiffs in the 2257 suit had "fail[ed] to overcome Defendant’s suggestion that there has been no noticeable impact on the quantity of sexually explicit speech from the enactment of §2257 or promulgation of the earlier regulations." But impact is something Murray has argued in his case from the very beginning.
"[T]he evidence before this Court leads to the exact opposite conclusion: it demonstrates the dramatic effect that 18 U.S.C. §2257 and its implementing regulations have had on expression published by Connection and on the expression of those who wish to publish their messages in Connection’s magazines," Murray argued in his Memorandum. "At both the preliminary injunction and summary judgment stages, plaintiffs produced evidence by way of business records and testimony showing the staggering blow that the record keeping requirements had inflicted on the publication of sexually explicit messages in Connection’s magazines."
In fact, Murray had shown a "precipitous downward spiral of Connection's revenues from personal magazine ads -- from a high of $45,445.10 in annual revenues in 1994, prior to enforcement of 18 U.S.C. §2257, to last year’s annual revenues of $ 8,000.21" as well as a "drastic decline in magazine revenue sales -- from a high of $ 954,681.52 in annual sales revenues in 1994, again prior to enforcement of 18 U.S. C. §2257, to last year’s annual sales revenues of $ 385,874.21." He further introduced testimony citing customers' fears of 2257 disclosure as the primary reason for the lack of ads submitted to Connection.
It's unclear how the Sixth Circuit will receive Murray's request to submit the "supplemental authority," though it's doubtful that they would refuse it, since that would create an appealable issue for Murray – but after 11 years in the Connection battle, Murray finds Judge Miller's decision to be a welcome ruling that should bring him several steps closer to victory.
