Court rejects First Amendment arguments of ‘swinger’ magazines

Friday, August 21, 1998

A company that publishes a dozen sexually explicit magazines for “swingers” has lost the latest round in its First Amendment challenge of a federal law.


A federal appeals court recently upheld the law that requires producers of movies, books or magazines which contain images of people engaged in sexually explicit conduct to keep records of those individuals.


The federal law provides: “Whoever produces any book, magazine, periodical, film, videotape, or other matter which contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct … shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.”


Connection Distributing Company, which publishes a dozen magazines for swingers, first filed suit in 1995 challenging the law on First Amendment grounds. The company claimed the record-keeping provisions of the law infringed on the free-speech and free-association rights of the company and its readers.


According to Connection, many of its readers subscribe to the philosophy of swinging — defined by the company as “an alternative social and sexual lifestyle comprised mostly of mature adults who believe in sexual freedom and do not believe in sexual monogamy.”


Many Connection subscribers place classified ads that contain pictures of themselves in the magazines. Many of the pictures feature individuals or couples engaged in sexually explicit conduct.


Connection asserted in its lawsuit that many swingers do not want to identify themselves in the ads they place in the magazines. The company claimed that the labeling and record-keeping provisions of the federal law infringe on the free-speech and free-association rights of swingers to communicate with other swingers.


The company also claimed that the law created a significant decline in its subscriptions, because many swingers simply did not want to lose their anonymity.


In fact, the editor of Connection's magazines testified at an evidentiary hearing that 80 to 90% of those who placed ads with photos in the magazine asked that their faces be obscured.


However, the government countered that the law was a reasonable way to protect against child pornography and was not an overly burdensome requirement. The government said the law was an enforcement mechanism to ensure that minors were not appearing in sexually explicit material.


The government, however, presented scant evidence that any of the photos in Connection's magazines were of minors. In fact, the government expert who testified that he believed three photos depicted minors, had earlier testified in pre-trial questioning that none of the photos he examined in Connection's magazines were of minors.


Last year a federal district court failed to grant Connection's request for a preliminary injunction blocking enforcement of the law. Last week, the 6th U.S. Circuit Court of Appeals agreed with the lower court in Connection Distributing Co. v. Reno.


The appeals court acknowledged that “the photographs published by Connection are protected expression to the extent they feature adults in non-obscene, sexually explicit conduct.”


However, the appeals court found that photographs of children engaged in sexual conduct would constitute child pornography, not constitutionally protected expression. The court reasoned that the law is a “reasonable attempt to balance the free speech interests of Connection and its readers against the interest of the government in fighting child pornography.”


Connection had argued that the law was an unconstitutional prior restraint on speech, was overbroad and would chill protected speech.


However, the appeals court rejected all of these arguments, finding instead that “the granting of an injunction against the enforcement of a likely constitutional statute would harm the government.”


J. Michael Murray, attorney for Connection, said: “This was a very disappointing decision. This act regulates constitutionally protected speech based on its content. The whole purpose of the statute is related to the content of the speech, because it is designed to affect the content.


“While the goal of this law may be laudable, the problem is that the means chosen to advance that goal are simply not narrowly tailored,” he said.


“The whole point of the First Amendment is that people should have the right to decide for themselves what speech is valuable and not valuable to them. It is not the government's business to censor speech that the government thinks is of little value.”


John Russell, public affairs specialist with the Department of Justice said: “We are very pleased with the decision and will continue to make every effort to diminish child exploitation which is a high priority on Attorney General Reno's agenda.”


Murray said he will first seek a full panel review by the 6th Circuit and then, if necessary, appeal the case to the U.S. Supreme Court.