3rd Circuit: 2 child-porn laws may be unconstitutional

Monday, April 23, 2012

Disagreeing with two other federal circuit courts, the 3rd U.S. Circuit Court of Appeals recently held that portions of two federal statutes aimed at producers of sexually explicit material might violate the First Amendment.

In Free Speech Coalition v. Attorney General of the United States, a three-judge panel of the 3rd Circuit on April 16 held that Section 2257 of the Child Protection and Obscenity Enforcement Act and Section 2257A of the Adam Walsh Child Protection and Safety Act potentially burden more speech than is necessary to further Congress’s interest in protecting children and might be otherwise overbroad. In doing so, the court acknowledged that the District of Columbia Circuit in 1995 upheld the statutes in American Library Association v. Reno and that the 6th Circuit did the same in 2009 in Connecticut Distributing Co. v. Holder.

Generally, in order to discourage the use of children in sexually explicit videos and other material, the statutes require producers of adult media to maintain a photo identification and the date of birth for each performer depicted as being engaged in “sexually explicit conduct” and to state on the distributed media where these records are kept. Violators of the statutes face criminal charges and possible imprisonment.

A coalition of individuals and entities involved in the adult media industry challenged the statutes in a Pennsylvania federal district court, arguing in part that the statutes violate the First Amendment because they burden producers that work with performers who clearly are adults and because they are otherwise overbroad.

The district court, relying on Reno and Holder, disagreed and dismissed the coalition’s First Amendment arguments.

On appeal, the 3rd Circuit agreed with the district court that the statutes are content neutral and advance a substantial government interest. The appellate court, however, disagreed with the trial court’s conclusions that the statutes could not in any circumstance burden substantially more speech than is necessary to advance that interest and could not be considered overbroad.

The 3rd Circuit therefore reversed the district court’s dismissal of the coalition’s First Amendment claims and held that the coalition is entitled to pursue the case further.

“If one of the Plaintiffs employs performers that no reasonable person could conclude were minors,” the court said, “then that plaintiff may be able to demonstrate that the Statutes burden substantially more of that plaintiff’s speech than is necessary to protect children from sexual exploitation.”

Without providing the coalition the opportunity to gather and present evidence, the court said, “we cannot accurately compare the amount of Plaintiffs’ constitutionally-protected speech that does not implicate the government’s interest in protecting children (e.g., speech involving performers who are obviously adults) to the amount of Plaintiffs’ speech that implicates the government’s interest (e.g., speech involving performers who are not obviously adults).”

Similarly, the court held that the coalition should be permitted the opportunity to present evidence that the statutes are overbroad, particularly because the statutes apply to depictions without regard to “the performers’ actual or apparent ages.”

“The degree of the asserted overbreadth is obviously the critical determination, but Plaintiffs were never afforded the opportunity to conduct discovery or develop a record from which we could determine this degree,” the court noted. “Without some notion of both the amount of speech that implicates the government’s interest in protecting children (e.g., depictions of performers who reasonably could be minors based on their apparent ages) and the amount of speech that is burdened but does not further the government’s interest (e.g., depictions of performers who are obviously adults), we cannot intelligently weigh the legitimate versus problematic applications of the Statutes.”

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